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FOREWORD 

This  volume  is  an  exact  photo-reproduction  of  an  original  copy  of 

BURNETT 

REPORT 

of  the 
SUPREME  COURT 

of  the 
TERRITORY  OF  WISCONSIN 

for 
1842  and  1843 


In  the  law  library  of  the  University  of  California  at  Los  Angeles, 
special  acknowledgment  is  made  to  Mr.  Louis  Piacenza,  Librarian 
for  the  kind  permission  to  use  the  original  volume  in  this  repro- 
duction. 

As  a  copy  of  the  original  is  practically  unobtainable,  the  reprint  of 
this  volume  is  offered  to  enable  law  libraries  to  complete  their 
collection  of  Wisconsin  Reports. 

The  edition  has  a  limited  printing. 

Buffalo,  N.  Y.  DENNIS  &  CO.,  INC. 

November,  1953 


REPORTS 


OF    THE 


SUPREME  COURT 


OF   THE 


TERRITORY  OF  WISCONSIN; 


FOR 


and  1843, 


[Reported  by  T.  P,  Burnett,  Reporter  for  the  Territory,] 


PUBLISHED  BY  AUTHORITY. 


MADISON: 
PRINTED  BY  GEORGE  HYER. 

1844, 


\ 


REPORTS. 


Cases  argued  and  decided  in  the  Supreme  Court 
of  the  Territory  of  Wisconsin  at  the  July  Term, 
A.  D.  1842. 

[Reported  by  T,  F,  Burnett,  Reporter  for  the  Territory.] 


JAMES  D.  DOTY,  impleaded  with  ~\ 

DAVID  JONES  and 

ALEXANDER  J.IR WIN,  FPffin  Error.  J.  Error  to  Dane  County. 

vs.  | 

MOSES  M.  STRONG,  Def-t  in  Error.     J 

A  writ  of  error  may  be  quashed,  when  it  does  not  agree  with  the  record 
of  the  case. 

All  the  persons  against  whom  a  judgment  is  given,  must  be  named  as 
plaintifis  in  a  writ  of  error  to  reverse  the  judgment. 

Although  the  proceeding  of  summons  and  severance  is  not  familiar  in 
American  practice,  the  more  easy  and  equally  legitimate  course,  is  to  en- 
ter a  rule  against  those  who  are  named  in  the  writ  as  plaintifis  and  who 
have  not  appeared,  either  to  appear  and  assign  error,  or  suffei  to  be  severed. 

AT  the  November  Term,  1841,  of  the  Dane  District  Court, 
Strong  obtained  judgment,  in  an  action  of  assumpsit,  against 
Doty,  Jones,  and  Irvvin.  To  reverse  the  judgment,  Doty  alone, 
prosecuted  this  writ  of  error,  and  entered  into  a  bond  for  a  super- 
sedeas  in  his  own  name,  without  joining  his  co-defendants  in  the 
original  action. 

The  defendant  in  error  moved  the  court  to  quash  the  writ  and 
dismiss  the  cuuse,  because, 

"  1st.  The  writ  of  error  is  prosecuted  in  the  name  of  Doty  alone, 
although  the  judgment  which  it  is  brought  to  reverse,  is  against 
the  said  Doty,  Jones,  and  Irwin:  and  2d.  The  bond  for  the  super- 
sedeas  is  informal  and  insufficient." 

In  support  of  this  motion,  BURNETT  and  DUNN  for  the  defen- 
dant in  error,  contended: 

That  where  a  judgment  is  given  against  several,  one  only,  can- 
not prosecu  te  a  writ  of  error  to  reverse  it.  If  the  writ  is  sued  out, 
it  must  be  in  the  names  of  all  the  defendants  against  whom  the 
judgment  was  given.  If  each  one  was  allowed  his  separate  writ, 


v>" 


4  REPORTS, 

they  could  bring  up  the  case  successively,  although  the  judgment 
should  be  affirmed  once  or  more;  and  as  a  writ  for  one  would  be 
u  supersedeas  for  all,  the  practice  would  tend  to  vexation  and  de- 
lay. See  2  B;ic.  Abr.  Title  Error,  B.  pnge  461,  and  the  authori- 
ties there  cited.  2  Tidd's  Prac.  1053,  1054.  3  Burr.  17S9. 
Graham's  Practice,  770,  771,  772.  In  such  case,  if  the  writ  be 
brought  by  one  or  more  of  the  defendants  only,  and  not  in  the 
names  of  all,  the  court  will  quash  it;  2  Tidd  1054.  2  T.  R.  788. 
3  Burr.  1789.  1  Wils.  88. 

The  bond  in  this  case  is  defective.  It  does  not  conform  to  the 
statute,  nor  does  it  conespond  with  the  record  of  the  cause,  and 
a  recovery  could  not  be  had  upon  it  in  case  the  judgment  should 
be  affirmed, 

JACKSON,  for  plaintiff  in  error: 

The  writ  is  properly  brought  in  the  name  of  one  only  of  the  de- 
fendants below.  He  is  the  one  who  complains  of  the  error,  and 
for  aught  that  appears,  the  others  may  be  satisfied  to  let  the  judg- 
ment rest.  He  has  no  power  to  compel  them  to  join  in  the  writ 
or  to  sign  the  bond,  and  if  they  neglect  or  refuse  to  do  so,  the 
defendant,  Doly,  cannot  be  deprived  of  his  remedy.  He  is  enti- 
tled to  the  writ  in  his  own  name  as  a  matter  of  right- 

Chief  Justice  DUNN  delivered  the  following  opinion  of  the  Court 
upon  the  motion. 

The  defendant  in  error  moved  the  court  to  dismiss  the  writ  of 
error  herein  for  two  reasons:  "1st.  The  writ  of  error  is  prosecu- 
ted in  the  name  of  Doty  alone,  although  the  judgment  which  it  is 
brought  to  reverse  was  against  the  said  Doty,  Jones,  and  Irwin. 
2d.  The  bond  for  supersedeas  is  informal  and  insufficient." 

The  record  in  this  case  from  the  District  Court  of  Dane  county, 
shows,  that  at  the  November  term  of  1841  of  said  court,  a judg- 
oient  was  rendered  in  favor  of  the  said  defendant,  Strong,  against 
ihe  said  plaintiff,  James  D.  Doty,  Alexander  J.  Irwin,  and  David 
Jones.  To  reverse  this  judgment,  Doty,  plaintiff  in  error,  and  one 
the  defendants  against  whom  the  said  judgment  was  rendered,  has 
prosecuted  this  writ  of  error  separately  from  the  other  defendants 
in  the  judgment.  The  case,  as  it  is  now  presented  on  the  motion 
submitted,  being  thus  correctly  stated,  the  court  will  proceed  to 
examine  live  merits  of  the  motion  to  dismiss  upon  the  grounds 
set  forth. 

It  ia  not  only  a  rule  that  no  person,  not  a  party,  can  sue  out 


REPORTS.  5 

a  writ  of  error,  but  it  is  also  a  settled  rule  that  it  must  be  brought 
in  the  names  of  all  ihe  parties  against  whom  the  judgment  is  giv- 
en: And  notwithstanding  the  death  of  any  of  the  parties,  though 
the  survivors  must  bring  the  writ,  he  must  still  be  named  and  his 
death  must  be  alledged.  And  this  is  the  rule,  both  that  the  writ 
of  error  may  ngree  with  the  record,  nqd  to  prevent  vexation;  far 
if  each  party  may'  bring  a  writ,  they  might  do  it  successively,  to 
the  groat  prejudice  and  delay  of  the  plaintiff,  who,  in  the  opinion 
of  the  ablest  jurists,  cannot  sue  out  execution  against  anyone 
where  a  writ  of  error  is  awarded,  even  on  the  application  of  the 
others.  A  writ  of  error  which  in  this  respect  is  erroneous,  may 
be  quashed.  Garth.  8.  Ld.  Ray.  71.  Saun.  101.  f. 

When  one  of  several  defendants  brings  a  writ  of  error  in  which 
the  others  are  unwilling  to  join,  he  must  do  it  in  the  name  of  all, 
and  those  who  refuse  to  appear  and  assign  errors,  must  be  sum- 
moned and  severed,  and  then  the  wiit  of  error  must  be  proceeded 
in  by  the  rest  only;  and  ihe  defendant  who  prosecutes  the  writ, 
will  not  be  •compelled  lo  proceed,  until  they  have  been  summon- 
ed and  severed.  Saund.  ubi  sup.  Thus  the  writ  of  error  cor- 
responds with  the  record;  and  moreover  the  other  parties  would 
be  forever  after  barred  of  the  writ;  see  Bac.  Summons,  H.  So 
that  both  purposes  are  subserved  by  this  course  of  proceeding. 

To  this  genera!  rule  there  is  this  obvious  exception,  that  if  one 
of  the  defendants  in  an  action  of  tort  is  ncquitted,  he  need  not  be 
joined,  because  he  cannot  say  that  the  judgment  is  to  his  damage; 
and  moreover,  for  the  reason  (hat  he  can  never  vex  the  plaintiff 
with  another  writ  of  error.  The  suit,  however,  should  be  descri- 
bed in  the  writ  according  to  the  record,  and  thus  both  objects  of 
ihe  law  herein  will  be  obtained.  Saund.  ubi  sup. 

In  6  Serg.  &,  Rawie,  in  the  case  of  Folterall  vs.  Floyd,  this  doc- 
trine is  fully  recognized  on  full  argument  and  reference  to  author- 
ities. Hacket  vs.  Home,  Garth.  7.  Walter  vs.  Stokoe,  1  Ld. 
Ray.  71.  Brewer  vs.  Turner,  1  Str.  233.  Cooper  vs.  Ginger,  re- 
portod  in  1  Str.  GOO,  and  Ld.  Ray.  1403.  And  the  principle  de- 
cided in  Hucket  vs.  Home  is  mentioned  and  acknowledged  io  the 
case  of  Knox  vs.  Costello,  3  Burr.  1789. 

The  practice  of  summons  and  severance  is  not  familiar  to  the 
American  courts  of  error.  The  more  easy  and  equally  legitimate 
practice,  would  be  to  enter  a  rule  against  those  persons  named  in 
the  writ  of  error  as  plaintiffs  and  not  appearing,  either  to  appear 


0  REPORTS. 

and  assign  error  or  submit  to  be  severed.  In  any  practice,  howev- 
er, all  the  defendants  in  judgment  must  first  join  in  suing  out  the 
writ  of  error.  We  are  of  opinion,  therefore,  that  the  writ  of  error 
in  this  case  be  quashed  for  the  first  reason  assigned  in  the  motion 
of  the  defendant,  without  considering  the  second  reason  which 
goes  to  the  form  and  sufficiency  of  the  bond,  which  it  is  not  ne- 
cessary to  consider  at  this  time. 

At  a  subsequent  day  of  the  term,  the  plaintiff  moved  the  court 
for  a  rehearing: 

SMITH  for  plaintiff  in  error: 

The  praecipe  for  the  writ  in  this  case,  was  made  out  and  filed 
with  the  clerk  in  the  names  of  all  the  defendants  in  the  court  be- 
low, and  if  the  writ  was  not  issued  according  to  the  praecipe,  it  is 
clear  that  it  may  be  amended.  But  whether  the  writ  might  be 
amended  or  not,  is  not  material.  A  party  has  a  right  to  the  writ 
separately.  The  old  doctrine  of  summons  and  severance  is  ob- 
solete, and  has  not  been  adopted  in  practice  in  this  country.  By 
the  decision  of  the  Supreme  Court  of  the  United  States  in  the 
case  of  Cox  and  Dicks  rs.  the  United  States,  6  Peters  172,  one 
defendant  may  bring  a  \vrit  of  error  alone,  without  joining  the  oth- 
ers; and  :he  practice  recognized  in  that  case  does  not  come  with- 
in the  reasoning  of  the  court  in  the  opinion  already  delivered  in 
this  case.  One  party  cannot  compel  the  others  to  join  in  the  writ 
and  sign  the  bond.  Some  may  be  absent,  or  refuse,  and  the  rea- 
son of  the  English  doctrine  does  not  exist  here.  There  the  writ 
and  bail  in  error,  supersede  the  whole  judgment;  here  it  is  only  a 
supesedeas  as  to  the  party  who  sues  out  the  writ  and  gives  the 
bond,  and  the  plaintiff  below  may  pursue  his  judgment  as  against 
the  others  who  do  not  join. 

BURNETT,  contra. 

The  first  ground  assumed  in  support  of  the  motion  now  before 
the  court  is,  that  thu  praecipe  was  made  out  in  the  names  of  all 
the  defendants  below,  and  that  the  writ  may  be  amended  to  cor- 
respond wilh  the  pjaccipe.  The  suggestion  comes  too  laic.  The 
court  will  not  set  aside  the  decision  given,  to  afford  an  opportuni- 
ty to  amend  the  papers  or  process,  when  no  motion  to  amend  was 
ever  made.  Besides,  it  is  proven  to  the  court  that  the  praecipe 
was  altered  by  the  plaintiff  in  error  himself,  and  that  the  writ  was 
issued  in  its  present  form  by  his  direction. 

The  case  of  Cox  and  Dicks  vs.  the  United  States,  cited  from  6 


REPORTS.  7 

Peters  by  the  plaintiff's  counsel,  is  not  analagoua  to  this  case,  nor 
does  it  support  the  position  assumed.  There  the  parties  had  sep- 
arate defences  in  the  court  below,  and  although  they  prosecuted 
separate  writs  of  error,  they  were  all  before  the  court. 

Chief  Justice  DUNN  delivered  the  opinion  of  the  court  upon  thb 
motion. 

The  court  could  not,  unless  for  extraordinary  reasons,  entertain 
this  motion.  The  reason  for  entertaining  the  motion  urged  by  coun- 
sel for  the  plaintiff,  is,  "  that  a  decision  of  the  Supreme  Court  of 
the  United  States,  in  Cox  and  Dicks  vs.  the  United  States,  rever- 
ses the  principles  decided  by  this  court  on  the  motion  to  dismiss 
herein."  From  a  minute  and  careful  inspection  of  that  decision, 
this  court  is  unanimously  in  the  opinion,  that  it  is  a  case  by  no 
means  in  point.  The  motion  was  decided  on  different  grounds 
entirely;  and  the  jeasons  which  influenced  the  court  in  that  case, 
as  far  as  they  can  be  inferred  from  the  arguments  of  counsel,  (for 
they  are  not  assigned  in  the  decision,)  are  such  as  conduce  to  sat- 
isfy this  court  still  more  clearly,  if  any  thing  were  wanting,  that 
their  opinion  on  the  motion  in  the  case  at  bar,  was  correct. 

We  understand  these  to  have  been  the  reasons  why  the  motion 
to  dismiss  was  overruled.  All  the  parties  were  before  the  court. 
They  had  separate  grounds  of  defence,  and  the  court  below  allowed 
them  to  sever  in  their  answers.  Judgment  was  awarded  against 
all  in  in  solido,  and  separately  for  the  whole  amount  against  two 
of  the  defendants.  They  had  both  sued  out  a  w.rit  of  error,  and 
the  motion  should  have  been  to  consolidate.  The  parties  had 
distinct  grounds  of  error,  and  claimed  distinct  remedies.  It  was 
insisted  in  argument,  that  the  case  of  Williams  vs.  Bank,  in  11 
Cranch,  was  not  applicable,  because  Williams  alone  took  up  the 
cause;  but  in  that  case  the  court  was  understood  to  recognize  the 
principle  in  practice  of  summons  and  severance* 

If  the  Supreme  Court  of  the  United  States  had  decided  that 
the  practice  of  summons  and  severance  was  obsolete  in  reference 
to  error  in  that  court,  (which,  however,  they  did  not,)  still,  if  this 
court  had  entertained  the  practice,  it  never  having  been  reversed 
by  any  judicial  decision  upon  principle,  it  certainly  would  not  have 
been  treated  as  error  by  the  Supreme  Court. 

Motion  overruled. 

WM.  R.  SMITH  and  M.  M.  JACKSON,  for  plaintiff  in  error. 

T.  P.  BURNETT  and  F.  J.  DUNN,  for  defendant  in  error. 


8  REPORTS. 


EDMUND  DAWS,  pft/ in  error,         ) 

vs.  >  Error  to  Jefferson  county. 

HORACE  GLASGOW,  deft  in  error.} 

THE  Supreme  Court  will  not,  under  any  circumstances,  consider  matters 
assigned  as  error,  which  are  dchnrs  the  record. 

Although  there  is  an  ohvious  impropriety  in  nn  attorney  in  a  cause,  ta- 
king, as  a  judicial  olTicer,  the  affidavit  of  his  client,  which  is  to  be  the 
foundation  of  the  action,  yet,  as  tlu-re  is  no  provision  of  law  or  rule  of 
court  to  prohibit  his  di'injj  so,  tlis  court  cannot  say,  that  from  the  fact  of 
his  being  attorney,  he  is  not  a  proper  oiTieer  before  whom  the  client  fnay 
make  the  necessary  affidavit  and  that  the  proceedings  should  be  therefore 
dismissed. 

Where  the  writ  of  replevin  is  for  the  caption  and  unjust  detention  of 
property,  the  declaration  should  correspond  and  alledcje  the  caption  and 
detention  ;  a  different  form  would  be  required  under  our  statute  if  the  de- 
tention only  was  complained  of. 

Where  a  motion  for  a  new  trial  is  made  on  the  ground  that  the  verdict 
is  contrary  to  the  evidence  and  the  instructions  of  the  court,  and  overruled, 
and  the  record  does  not  show  what  the  evidence  or  instructions  were,  this 
court  is  bound  to  presume,  that  the  discretion  of  the  District  Court  was 
soundly  exercised  in  overruling  the  motion. 

Glasgow  brought  nn  action  of  replevin  against  Daws  in  the  Jeffer- 
son District  Court,  for  the  cnpiion  and  detention  of  a  horse.  The 
writ  was  issued  in  the  usual  form  prescribed  by  the  staiute  for  the 
caption  and  detention,  and  the  declaration  filed  corresponded  with 
the  writ.  It  appeared  that  the  affidavit  upon  which  the  writ  issu- 
ed, was  made  before  the  plaintiff's  attorney  as  a  Supreme  Court 
Commissioner.  At  the  May  term  1842  of  the  Jefferson  District 
Court,  Daws,  the  defendant  below,  moved  to  dismiss  the  suit  for 
want  of  a  sufficient  affidavit  and  bond,  which  motion  was  overrul- 
ed by  the  court.  Tne  defendant  then  filed  a  general  demurrer 
lo  the  declaration,  which  was  also  overruled;  upon  which  he  filed 
the  pica  of  now  detinrt,  or  that  he  did  not  unjustly  detain, &c.,  up- 
on which  issue  was  joined  and  a  verdict  rendered  in  favor  of  the 
plaintiff.  The  defendant  moved  for  a  now  trial  on  the  ground  that 
the  verdict  was  contrary  to  evidence  and  contrary  to  the  instruc- 
tions of  court,  which  motion  was  overruled  and  judgment  render- 
ed upon  the  verdict.  The  defendant  below  has  prosecuted  this 
writ  of  error  to  reverse  the  judgment,  and  has  made  the  following 
assignment  of  errors  in  the  proceedings  of  the  court  below: 

"  1st.  The  court  erred  in  overruling  the  motion  to  dismiss  for 
want  of  a  sufficient  affidavit  and  bond: 


REPORTS.  9 

2d.  In  overruling  the  defendant's  demurrer  to  the  plaintiff  13 
declaration : 

3d.  In  overruling  the  defendant's  motion  for  a  new  trial* 

4th.  The  court  erred  in  ordering  the  issue  to  be  made  up  on 
the  unjust  detention  only,  as  the  taking  was  complained  of.'' 

There  was  no  bill  of  exceptions  taken  to  spread  the  testimony 
or  the  instructions  of  the  court  upon  the  record,  and  the  record 
does  not  show  any  such  order  as  is  mentioned  in  the  fourth  error 
assigned. 

NOGGLE  for  plaintiff  in  error: 

The  affidavit,  which  is  the  foundation  of  this  action,  is  not  suf- 
ficient, and  the  court  below  ought  to  have  dismissed  the  case 
upon  motion.  The  affidavit  was  made  before  Markley,  a  Su- 
preme Court  Commissioner,  who  was  the  attorney  for  the  plain- 
tiff and  who  brought  the  suit.  He  was  not  a  proper  officer  with- 
in the  meaning  of  the  statute.  See  Stats.  Wis.  pa.  272,  sec.  7. 

The  demurrer  to  the  declaration  ought  to  have  been  sustained. 
The  declaration  is  erroneous  because  it  does  not  comply  with  the 
requisitions  of  the  statute.  See  Stat.  Wis.  pa.  273,  sec.  16;  Rev. 
Stat.  N.  Y.  435;  Yates  Plead.  547. 

The  court  below  ened  in  requiring  the  defendant  to  plead  as  to 
the  unjust  detention  only.  It  is  not  such  a  plea  as  the  statute  re- 
quires to  a  declaration  in  this  form.  See  Stats.  Wis.  pa.  274,  sec. 
19.  The  issue  thus  made  up  precluded  the  defendant  below  from 
justifying  on  the  trial  his  caption  of  the  property  in  dispute. 

The  motion  for  a  new  trial  ought  to  have  prevailed,  because 
the  verdict  was  contrary  to  law  and  evidence.  Admitting  the 
whole  declaration  to  be  proven,  it  does  not  establish  a  case  in 
which  the  plaintiff  can  recover.  See  10  Wendell  629.  Our 
statute  in  relation  to  the  action  of  replevin  is  the  same  as  that  of 
New  York,  and  the  decisions  under  it  ought  to  be  the  same  as 
given  in  that  state.  2  N.  Y.  Stat.  435,  sec.  36. 

The  verdict  of  the  jury  was  contrary  to  the  instructions  of  the 
court,  and  in  such  case  a  new  trial  should  have  been  granted. 
Graham  on  new  trials,  361  to  372. 

BOTKIN,  in  reply: 

The  affidavit  ought  not  to  be  considered  insufficient  on  account 
of  the  professional  relation  of  the  officer  who  administered  the 
oath.  He  was  an  officer  authorized  by  law  tc  administer  such 
an  oath,  and  there  is  no  objection  to  the  form  of  the  affidavit. — 

2 


10  REPORTS. 

There  Ss  no  law  prohibiting  an  attorney  in  a  cause  from  adminis- 
tering oaths  if  he  is  n  qualified  officer.  He  cannot  change  the  ef- 
fect oif  a  written  affidavit  by  swearing  ;lie  party  to  ils  contents 
and  signing  the  jurat.  It  may  be  conceded,  that  if  the  attorney 
was  to  make  any  order  or  give  any  decision  in  a  cause,  as  a  civil 
officer,  that  might,  even  by  possibility,  prejudice  the  rights  of  the 
adverse  client,  he  would  nol  in  such  cate  be  a  proper  officer.  But 
this  is  not  such  a  case,  and  neither  the  law  nor  reason  prohibits 
the  act  that  has  been  done. 

The  counsel  for  the  plaintiff  in  error  hrts  assumed  matters  as 
error  that  do  not  appear  on  the  record,  and  which  of  course  can- 
not be  settled  here.  The  record  does  not  show  that  the  court  be- 
low in  any  way  controlled  the  plaintiff  in  error  as  to  the  form  or 
substance  of  his  plea;  nor  does  it  show  any  thing  that  will  enable 
this  court  to  determine  that  the  verdict  of  the  jury  was  either 
against  evidence  or  the  instructions  of  the  court. 

The  declaration  substantially  complies  with  the  statute,,  and 
with  the  soundest  principles  of  practice,  in  every  particular;  and  af- 
ter verdict,  every  thing  necessary  to  sustain  it,  is  to  be  presumed 
where  the  contrary  does  not  appear. 

NOGGLE,  in  conclusion: 

Although  the  statute  does  not  expressly  prohibit  an  attorney 
from  acting  as  a  civil  officer  in  a  cause  in  which  he  is  employed, 
still  reason  and  sound  policy  require  that  the  administration  of 
oaths  and  every  other  official  act  necessary  to  be  done  in  the  pro- 
gress of  the  case,  should  be  performed  by  sotne  indifferent  person. 

The  plea  in  this  case  only  denies  the  unjust  detention.  If  the 
plaintiffbelow  accepted  the  plea  and  took  issue  upon  it,  he  aban- 
doned the  caption  charged  in  the  writ  and  declaration,  and  of 
course  the  whole  action,  as  the  detention  is  only  laid  as  a  conse- 
quence of  the  cap! ion. 

Chiei  Justice  DUNN  delivered  the  opinion  of  the  court: 

This  case  was  tried  in  the  District  Court  of  Jefferson  county 
at  the  May  term  thereof,  1842;  verdict  and  judgment  thereon 
rendered  in  fivor  of  defendant  D;iws  as  plaintiff  below,  to  reverse 
which  judgtn 'n',  writ  of  error  is  prosecuted  in  this  court.  The 
errors  assigned  by  the  plaintiff*  are: 

1st.  The  court  erred  in  overruling  the  motion  to  dismiss  for 
want  of  sufficient  affidavit  and  bond: 

2d.  In  overruling  demurrer  to  plaintiff's  declaration: 


REPORTS.  1 1 

3d.  In  overruling  defendant's  motion  for  a  new  trial: 

4th.  The  court  erred  in  ordering  the  issue  to  be  made  up  on 
the  unjust  detention  only,  as  the  taking  was  complained  of. 

Before  proceeding  to  examine  the  errors  which  are  based  upon 
the  record,  ihe  court  will  premise,  that  they  cannot  consent,  un- 
der any  circumstances,  to  consider  or  entertain  matters  dekors,  as 
the  fourtli  error  assigned  evidently  is,  from  an  inspection  of  the 
record. 

First  then;  did  the  District  Court  err  in  overruling  the  motion 
to  dismiss  for  want  of  a  sufficient  affidavit  and  bond?  In  discussing 
this  error,  the  counsel  for  the  plaintiff  took  no  exception  to  the 
bond,  indeed  it  does  not  appear  to  be  obnoxious  to  any,  but  con- 
fined his  objections  entirely  to  the  affidavit;  and  assumed  the 
ground,  "that  the  attorney  for  the  plaintiff,  although  a  Supreme 
Court  Commissioner  of  the  county  of  Jefferson,  is  not  a  proper 
officer  in  the  meaning  of  the  law,  before  whom  the  affidavit  in  re- 
plevin may  be  made.'1  Although  there  is  an  obvious  impropriety 
in  the  practice,  and  this  court  is  much  disposed  to  discountenance 
it,  yet  theie  is  no  rule  of  lusv,  or  of  court  under  authority  of  law, 
against  the  exercise  of  such  a  power  by  the  attorney  in  the  case, 
by  virtue  of  his  office  of  Supreme  Court  Commissioner  of  Jeffer- 
son county.  The  possibility  of  the  ubu?e  of  a  power  delegated 
by  law,  when  exercised  in  a  particular  relation,  is  not  a  sufficient 
argument  against  the  exercise  of  the  power  in  such  relation,  un- 
less so  specially  provided  in  the  law  granting  the  general  power: 
And  we  aie  of  opinion  that  the  District  Court  decided  correctly  in 
overruling  the  motion  to  dismiss. 

The  decision  of  the  District  Court  in  overruling  the  demurrer 
to  the  plaintiff's  declaration,  is  also,  in  the  opinion  of  this  court, 
free  from  error.  The  declaration  is  good,  according  to  the  most 
approved  practice,  as  a  declaration  in  replevin,  for  taking  and  un- 
justly detaining  property.  If  it  had  been  a  declaration  on  a  writ 
of  replevin,  for  the  unjust  detention  onl),  then,  according  to  the 
provisions  of  the  16th  section  of  our  "act  concerning  replevin," 
the  form  of  declaring  should  have  been  varied  to  meet  the  require- 
ments of  that  Faction.  The  authority  in  10th  Wendell,  Lloyd 
Nichols  vs.  Charles  Nichols,  G29,  is  recognized  by  this  court,  it  be- 
ing a  decision  by  the  Supreme  Court  of  New  York  on  a  statute  of 
that  state  pari  materia  with  our  own  "act  concerning  replevin." 
But  the  principle  there  decided  is  not  brought  in  question  in  this 


12  REPORTS. 

case,  where  the  declaration  contains  all  the  material  allegations 
to  support  the  writ  of  replevin,  and  entitle  the  plaintiff  to  recover 
for  the  taking  and  unjust  detention  of  his  property,  if  sustained  by 
proof.  Upon  the  record  the  decision  of  the  District  Court  on  the 
demurrer  was  correct. 

It  is  insisted  in  the  3d  error  assigned,  that  the  District  Court 
erred  in  overruling  the  defendant's  motion  for  a  new  trial.  The 
motion,  with  the  reasons  upon  which  it  is  based,  are  matters  of  re- 
cord. The  reasons  in  the  motion  are — 1st.  That  the  verdict  was 
contrary  to  the  evidence  given  in  said  case:  2d.  That  said  verdict 
was  contrary  to  the  instructions  of  the  court. 

It  no  where  appears  in  the  record,  what  this  evidence  and  in- 
structions of  the  court  were .  There  is  nothing  to  inform  this  court 
whether  or  not  the  District  Court  exercised  a  sound  legal  discre- 
tion in  overruling  the  motion  for  a  new  trial;  but  we  are  bound  to 
presume  that  the  discretion  was  properly  and  soundly  exercised, 
in  the  absence  of  matter,  apparent  on  the  record  to  the  contrary. 

We  are  therefore  of  opinion,  that  all  the  errors  assigned  are  un- 
tenable, and  that  the  judgment  of  tne  District  Court  of  Jefferson 
county  be  affirmed  with  costs. 

DAVID  NOGGLE  for  plt'ff  in  error. 

FIELD  and  BOTKIN  for  deft  in  error. 


REPORTS.  13 


DANIEL  M.  PARKISON,  PPffin  Error, ) 

vs.  >    Error  to  Iowa  County. 

CHARLES  BRACKEN,  DcJ't  in  Error,  > 

IN  an  action  at  law,  the  patent  of  the  United  States  is  conclusive  evi- 
dence that  the  title  to  the  land  is  in  the  patentee,  and  evidence  will  not  be 
admitted  to  establish  an  adverse  equitable  title. 

If  there  should  be  two  patents  for  the  same  tract  of  land,  the  elder  patenl 
must  prevail  at  law. 

If  the  defendant  has  an  equitahlc  title  to  the  land,  superior  to  that  of  the 
patentee,  he  must  resort  to  a  court  of  equity  to  assert  it. 

The  Receivers  receipt  for  the  same  tract  of  land  embraced  in  the  patent, 
showing  that  it  was  entered  by  the  defendant  at  the  land  oftice,  anterior  to 
the  date  of  the  patent,  is  not  evidence  for  the  defendant  to  defeat  a  recove- 
ry in  an  action  of  ejectment  brought  by  thn  patentee,  and  should  not  be 
read  to  the  jury  on  the  trial;  and  the  District  Court  properly  excluded  all 
testimony  of  facts  which  would  only  go  to  show  an  equitable  title  in  the 
defendant  adverse  to  the  patent. 

A  continuance,  asked  for  by  the  defendant,  to  enable  him  to  procure  tes- 
timony which  would  only  go  to  establish  an  equitable  title  in  himself  ad- 
verse to  the  patent,  for  the  purpose  of  defeating  a  recovery  at  law  by  the 
patentee,  ought  not  to  be  granted. 

A  patent  which  appears  on  its  face  to  have  been  regularly  issued,  will 
be  presumed  to  have  been  signed  and  executed  according  to  law,  until  the 
contrnry  shall  be  made  to  appear,  and  the  court  cannot  undertake  to  say, 
frooi  the  mere  inspection  of  the  hand  writing,  that  the  name  of  the  Presi- 
dent was  not  signed  by  the  proper  person. 

The  law  presumes  that  public  officers  do  their  duty,  and  that  in  their  of- 
ficial acts  they  conform  to  the  requirements  of  the  law,  until  the  contrary 
shall  be  made  to  appear. 

The  act  of  Congress  to  confirm  land  patents,  approved  March  3,  1841, 
is  valid  and  effectual,  and  cures  all  defects  provided  for  in  patents  that  had 
been  previously  issued  :  it  relates  back  to  the  date  of  the  patent  confirmed, 
and  it  makes  no  difference  that  a  suit  was  pending  on  the  patent  at  the  pas- 
sage of  the  act. 

This  was  an  action  of  ejectment,  brought  by  Bracken  against 
Parkison,  in  the  Iowa  District  Court,  to  recover  a  tract  of  eighty 
acres  of  land.  At  the  September  term,  1841,  when  the  cause 
was  called  for  trial,  Parkison  moved  the  court  for  a  continuance 
of  the  cause,  for  the  purpose  of  enabling  him  to  procure  testimony 
from  the  General  Land  Office  at  Washington,  to  prove  various 
matters  tending  to  show  that  he  had  a  superior  equitable  right  to 
enter  the  land  in  controversy;  in  order  that  by  connecting  such 
testimony  with  the  receiver's  receipt  which  he  held  for  the  same 
tract,  of  anterior  date,  he  might  defeat  the  patent  which  had  been 
issued  to  Bracken.  The  District  Court  refused  to  grant  the  con- 
tinuance, and  decided  that  the  facts  which  he  expected  to  prove 


14  REPORTS. 

would  not  be  competent  testimony  in  the  defence.  Upon  the 
trial,  the  plaintiff  below  offered  in  evidence  a  patent  from  the 
United  States  to  him  for  the  land  in  dispute,  dated  27th  April, 
1840.  The  patent  was  signed  "  Martin  Van  Buren,  by  M.  Van 
Buren,  jr.  sec'y."  From  the  appearance  alone  of  the  writing,  it 
would  seem  that  both  names  were  not  written  by  the  same  hand. 
The  defendant's  counsel  objected  to  the  reading  of  the  patent  in 
evidence,  alledging  that  it  was  evident  from  its  face,  that  the  Pre- 
sidents name  was  not  written  by  the  secretary  authorized  to  sign 
patents,  and  that  no  other  person  could  lawfully  sign  the  name  of 
the  President  to  a  patent.  There  was  no  evidence  offered  to 
sustain  the  objection,  which  objection  the  court  overruled,  and 
permitted  the  patent  to  be  read  to  the  jury.  After  the  plaintiff's 
testimony  was  closed,  the  defendant  offered  to  read  in  evidence 
to  the  jury,  the  receipt  of  the  Receiver  of  public  money  at  Mineral 
Point,  dated  15th  March,  1830,  by  which  it  appeared  that  on  that 
day  he  entered,  at  the  Land  Office  at  Mineral  Point,  the  tract  of 
land  in  controversy,  and  to  accompany  it  by  other  testimony,  sim- 
ilar to  that,  to  procure  which  he  asked  a  continuance;  to  all  which 
testimony  the  plaintiff's  counsel  objected,  which  objection  the 
court  sustained,  and  rejected  the  testimony.  Exceptions  were 
taken  to  these  various  decisions,  and  a  verdictand  judgment  were 
rendered  in  favor  of  the  plaintiff.  To  reverse  this  judgment,  Par- 
kison  has  prosecuted  this  writ  of  error,  arid  has  assigned  the  fol- 
lowing errors  in  the  record  of  the  proceedings  in  the  court 
below : 

I.  The  court  below  erred  in  overruling  the  first  motion  of  the 
defendant  below  for  a  continuance. 

II.  The  court  below  erred  in  overruling  the  second  motion  of 
the  defendant  below  for  a  continuance. 

III.  The  court  below  erred  in  admitting  in  evidence  the  patent 
offered  by  the  plaintiff  below. 

IV.  The  court  below  erred  in  excluding  the  Receiver's  receipt 
offered  by  the  defendant  below  as  evidence. 

V.  The  court  below  erred  in  excluding  the  evidence  offered 
by  the  defendant  below. 

VI.  The  court  below  erred  in  refusing  to  instruct  the  jury  as 
requested  by  the  defendant  below. 

By  order  of  the  District  Court,  the  patent  was  produced  for  the 
inspection  of  this  court,  and  the  Receiver's  receipt  was  also  pro- 


KEPORTS.  15 

-duced  and  examined.  Upon  argument,  the  sixth  error  assigned 
Was  abandoned  by  the  plaintiff  in  error. 

MOSES  M.  STRONG  for  plaintiff  in  error: 

The  two  first  errors  assigned  are  in  tho  decisions  of  tho  court  in 
overruling  the  motions  of  the  defendant  below  fora  continuance. 
As  'he  evidence  sought  to  lie  procured  by  the  continuance  was 
substantially  the  same  as  that  offered  on  the  trial  and  rejected  by 
the  court,  they  will  be  considered  in  connection  with  the  error  in 
excluding  the  evidence  offered  by  the  defendant;  for  it  will  be 
admitted,  that  if  tho  court  decided  correctly  in  rejecting  the  evi- 
dence that  w.<s  offered,  then  the  motion  fora  continuance  for  the 
purpose  of  procuring  other  evidence  of  the  same  character,  was 
properly  overruled. 

We  will  first  inquire  whether  the  objection  to  the  patent  read  in 
evidence  by  the  defendant  in  error  on  the  trial  below,  and  which 
is  embraced  in  the  third  assignment  of  error,  was  weil  taken.  I 
will  assume  the  position  that  title  to  land  can  orily  pass  from  the 
United  States  in  pursuance  of  law,  and  that  in  all  cases  where  the 
laws  of  Congress  prescribe  one  mode  in  which  the  title  shall  be 
passed,  no  other  mode  can  be  substituted  by  the  officers  of  the 
government.  By  the  former  laws  of  Congress,  all  patents  for  land 
had  to  be  signed  by  the  President  himself.  By  the  present  law, 
which  was  passed  prior  to  the  date  of  the  patent  in  this  cnse,  a  se- 
cretary appointed  for  that  purpose  may  sign  for  the  President. 
See  acts  of  Congress  of  March  2,  1833,  and  July  4,  1836.  We 
contend  that,  under  the  present  law,  no  person  but  the  secretary 
is  authorized  to  sign  the  name  of  the  President  to  the  patent.  The 
patent  produced  by  the  defendant  in  error  as  evidence  of  his  title, 
shows  on  its  face  that  the  names  of  the  President  and  secretary 
were  not  written  by  the  same  hand.  No  testimony  could  make 
the  matter  more  plain.  Bui  the  defendant  in  error  insists  that 
this  defect  is  cured  by  the  act  of  Congress  to  confirm  land  patents, 
approved  March  3,  1841.  Although  it  cannot  be  questioned  that 
Congress  may  pass  laws  to  vest  the  title  to  land  in  any  person,  in 
the  first  instance,  without  limitation  or  restriction,  yet  it  cannot, 
by  a  general  law,  make  a  patent  valid  that  was  invalid  before. 
The  rights  of  other  persons  than  the  patentee,  cannot  be  preju- 
diced by  the  retrospective  character  of  the  act.  Again:  the  act 
of  confirmation  was  passed  after  the  commencement  of  this  suit. 
When  the  suit  was  commenced,  the  patent  was  bad,  and  the  plain- 


16  REPORTS. 

tiff  below  could  not  then  have  recovered  upon  it;  the  act  cannot 
relate  back  so  as  to  affect  or  entirely  change  the  rights  of  the  par- 
ties in  the  course  of  litigation  at  the  time  of  its  passage. 

The  record  shows  that  the  Receiver's  receipt  to  Parkison  for 
the  land  in  dispute  bears  date  the  15th  March,  1830,  and  the  pa- 
tent by  which  the  defendant  in  error  recovered  below,  is  dated 
7th  April,  1840,  and  the  question  now  arises:  did  the  District 
Court  err  in  rejecting  it  and  other  evidence  offered  on  the  trial? 
The  receipt,  connected  with  the  other  evidence  offered,  would 
have  shown  an  inchoate  title  in  the  plaintiff  in  error  prior  to  the 
date  of  the  patent.  It  was  a  link  in  his  testimony,  and  the  couit 
could  not  know  but  it  would  be  followed  by  a  patent  according  to 
the  entry.  According  to  all  authorities  upon  the  subject, 
Parkisou  had  an  equitable  title  to  the  land.  The  testimony  which 
he  offered,  would  have  shown  that  his  title  was  acquired  before 
the  patent  issued  to  Bracken,  and  the  court  ought  to  hare  permit- 
ted him  to  establish  it  by  proof.  Although,  technically  speaking, 
his  title  was  but  an  equitable  one,  if  it  was  better  than  Bracken's 
it  ought  to  have  been  sufficient  for  his  defence.  Conflicting  deci- 
sions are  to  be  found  upon  this  principle,  but  the  weight  of  autho- 
rity and  of  reason,  is  in  favor  of  the  position  assumed,  in  support  of 
which  I  will  refer  the  court  to  the  following  authorities:  Brush, 
et  al.  vs.  Ware,  et  al.  appellees,  15  Peter's  93.  Polkas  lessee  vs. 
Wendell,  9  Cranch,  87.  S.  C.  5  Wheat.  293.  Reader,  et  al.  vs. 
Barr,etal.  4  Ohio  Rep.  446.  Miller,  et  al.  vs.  Kerr,et  al.7 
Wheat.  1.  Hoofnagle  vs.  Anderson,  7  Wheat.  212.  Ross  vs. 
Doe,  1  Peters,  055.  In  the  last  case,  the  party  was  allowed  to  go- 
behind  the  patent  in  a  trial  at  law  to  defeat  its  legal  effect. 

DUNN  for  defendant  in  error: 

This  case  principally  depends  upon  the  correctness  of  the  deci- 
sion of  the  District  Court,  in  rejecting  the  testimony  offered  by  the 
defendant  below.  The  plaintiff  in  error  insists  that  the  District 
Court  erred  in  not  permitting  him  to  prove  an  equitable  title  in 
himself,  anterior  to  the  date  of  the  patent  to  the  defendant  in  er- 
ror. A  patent  from  the  United  States  is  conclusive  as  to  the  title 
to  lands,  and  in  an  action  at  law,  a  party  cannot  set  up  any  adverse 
title  to  the  patentee  or  his  assigns  or  legal  representatives.  If  he 
has  an  equitable  title,  a  court  of  law  cannot  decide  upon  it;  he 
must  apply  to  chancery  for  relief.  If  there  are  two  patents  for 
the  same  tract,  the  rule  applies  in  favor  of  the  elder  patent,  and  in 


REPORTS.  17 

such  case,  the  junior  patent,  if  it  amounts  to  any  thing,  is  only 
evidence  of  an  equitable  title.  See  Wilcox  vs.  Jackson,  13  Pe- 
ters, 498.  Ross  vs.  Doe,  1  Peters,  G56.  U.  S.  vs.  Arredondo, 
&  Peters,  725.  Bagncll  et  al.  vs.  Brodcrick,  13  Peters,  436, 450. 
1 1  Whecat.  580.  5  Wheat,  293 .  7  Wheat.  15 1. 

The  plaintiff  in  error  insists  that  the  patent  read  in  evidence  by 
the  defendant  in  error  upon  the  trial  was  not  signed  as  the  law  re- 
quires, and  that  it  is  therefore  void.  There  was  no  evidence  of- 
fered to  impeach  the  patent,  and  there  is  no  principle  of  law  that 
will  authorize  the  court  to  say,  from  inspection  only,  that  an  official 
paper  has  not  been  signed  as  it  purports  on  its  face  to  have  been 
done.  Admitting  that  the  error  existed  in  the  signing  of  the  pa- 
tent, as  is  alledged,  the  United  States  only  could  take  advantage 
of  the  defect,  and  they  had  full  power  to  correct  it,  and  the  cor- 
rection has  been  made.  The  act  of  Congress  of  March  3,  1841, 
was  passed  to  confirm  titles  that  had  been  defectively  granted  to 
the  purchasers  of  the  public  lands,  and  cures  the  alledged  defects 
in  this  patent,  if  they  existed  at  all. 

BURNETT  in  continuation. 

The  correctness  of  the  decision  of  the  District  Court,  in  ad- 
mitting the  patent  as  evidence,  it  seems  to  me  cannot  be  ques- 
tioned. A  patent  is  a  record,  and  proves  itself.  When  required 
as  a  matter  of  evidence,  nothing  further  is  necessary  than  its  pro- 
duction, and  if  it  is  regular  on  its  face,  it  must  be  admitted.  This 
patent  appears  to  be  regular  on  its  face,  and  although  the  error 
may  exist  in  signing,  as  is  contended,  it  was  not  void;  at  most,  it 
was  only  voidable,  and  independently  of  the  act  of  Congress  pas- 
sed in  confirmation,  the  plaintiff  in  error  could  not  impeach  it  in 
this  suit.  Where  a  patent,  regular  on  its  face,  is  voidable,  it  can 
only  be  avoided  by  a  proceeding  in  chancery  for  that  purpose; 
Jackson  vs.  Lnu-ton,  10  Johns.  Rep.  23.  If  a  patent  is  issued  by 
fraud  or  mistake,  unless  the  fraud  or  mistake  appears  upon  its 
face,  it  can  only  be  avoided  by  a  suit  in  chancery  for  that  purpose ; 
id.  Jackson  exdcm.  Houseman  vs.  Hart,  12  Johns.  Rep.  77.  Fur- 
ther: the  court  is  bound  to  presume,  until  it  shall  be  made  to  ap- 
pear otherwise,  that  where  the  law  requires  public  officers  to  per- 
form certain  acts  in  a  particular  manner,  they  have  done  their 
duty  in  the  manner  which  the  law  prescribes.  This  is  a  presump- 
tion of  law:  See  3  East.  200.  Hartwell  vs.  Root,  19  Johns. 


18  REPORTS. 

Rep.  347.     PoWs  lessee  vs.   Wendell,  9  Cranch,  98.  S.  C.  5 
Wheat.  304.     Patterson  vs.  Jenks,  2  Peters,  237. 

But  if  the  patent  could  be  impeached  in  this  suit,  (which  is  not 
admitted,)  how  was  it  to  be  done?  Surely  by  him  who  alledged 
the  irregularity  proving  that  it  existed.  This  has  not  been  attempt- 
ed, and  the  court  is  asked  to  decide  in  his  fnvor,  upon  bare  in- 
spection. The  court  is  required  to  know,  judicially,  the  hands 
writing  of  the  officers  of  the  government,  and  to  decide  from  that 
knowledge  whether  signatures  be  genuine  or  not.  There  can 
be  no  authority  found  to  sustain  the  position,  and  it  cannot  be 
necessary  to  refer  to  any  to  lefule  it. 

A  patent,  then,  being  a  record,  and  proving  itself,  requiring  no 
other  evidence  to  support  its  authenticity  or  establish  its  validity, 
and  this  being  regular  on  its  face,  and  purporting  to  have  been 
issued  in  the  manner  prescribed  by  law,  and  standing  unimpeach- 
ed  by  any  testimony  against  it,  the  court  is  bound  to  acknowledge 
it  for  what  it  professes  to  be,  and  give  it  full  weight  as  evidence 
of  title  in  the  patentee. 

This  point  being  disposed  of,  as  I  trust  satisfactorily,  the  fourth 
and  fifth  errors  assigned  may  be  considered  together,  and  they  will 
dispose  of  the  whole  case.  It  is  not  necessary  agam  to  go  over 
the  arguments  that  have  been  offered  to  the  court,  and  the  autho- 
rities that  have  been  read  to  show,  that  in  an  action  at  law,  the 
patent  is  conclusive  evidence  of  title  in  the  patentee  or  those 
claiming  under  him,  and  that  an  adverse  equitable  title  cannot  be 
set  up  to  defeat  it;  and  that  if  there  be  an  adverse  equitable  title, 
a  court  of  chancery  is  the  only  tribunal  that  can  give  relief.  This 
is  the  established  doctrine  in  every  state  in  the  Union,  (I  believe,) 
where  equity  courts  exist,  and  the  settled  rule  of  the  Supreme 
Court  of  the  United  States.  The  authorities  that  have  been  read 
by  the  plaintiff  in  error  for  the  purpose  of  controverting  the  princi- 
ple laid  down,  do  not  sustain  his  position.  The  most  of  his  cases 
were  appeals  in  chancery,  where  bills  had  been  filed  to  establish 
equKable  titles,  and  whenever  the  inquiry  has  been  gone  into  at 
law,  it  has  been  under  some  peculiar  and  extraordinary  circum- 
stances, not  at  all  analagous  to  this  case.  The  case  of  Ross  vs. 
Doe,  cited  from  1  Peters,  is  relied  upon  as  authority  here.  When 
the  court  examines  the  law  under  which  that  case  was  decided,  it 
will  be  found  to  have  no  applicability  to  this.  The  conflict  of  titles 
in  that  case,  arose  under  the  act  of  Congress  of  3d  March,  1803, 


REPORTS.  19 

regulating  the  grants  of  land  and  providing  for  the  disposal  of  the 
lands  of  the  United  States  south  of  the  state  of  Tennessee,  2 
Story's  Laws  U.  S.  893.  And  the  principles  decided  by  the  Su- 
preme Court,  and  the  reasons  upon  which  they  were  based,  do  not 
at  all  conflict  with  the  general  rule  that  the  patent  is  conclusive 
in  a  trial  at  law. 

But  it  is  said  that  the  court  ought  not  to  have  rejected  the  evi- 
dence that  was  offered,  because  it  was  a  link  in  the  chain  of  title, 
and  the  court  could  not  know  but  it  might  have  been  followed  by 
a  patent  to  the  plaintiff  in  error.  This  argument  is  more  specious 
than  forcible.  If  lie  had  a  patent  of  elder  date,  the  production  of 
it  would  have  settled  every  question.  The  superior  patent  is  the 
highest  evidence  of  title,  and  is  not  connected  with  equity  by 
links  or  chains  to  make  it  prevail  over  all  others  in  a  trial  at  law. 

Judge  JMILLUR  delivered  the  opinion  of  the  court: 

This  was  an  ejectment,  brought  by  the  defendant  in  error  against 
the  plaintiff  in  error,  in  the  District  Court  of  Iowa  county. 

The  court  admitted  in  evidence,  on  the  part  of  the  plaintiff,  a 
patent  purporting  to  have  been  signed  in  the  name  of  the  Presi- 
dent of  the  United  States  by  his  secretary  for  that  purpose.  The 
patent  appears  on  its  face  to  have  been  regularly  executed,  sealed, 
and  recorded,  according  to  law;  but,  because  the  filling  up  of  the 
patent,  and  the  name  of  the  President,  appear  to  be  in  the  same 
hand  writing,  and  the  signature  of  the  secretary  in  another,  it  was 
thereby  inferred  that  the  President  had  not  signed  it,  or  that  the 
secretary  had  not  signed  the  President's  name  according  to  the 
requisites  of  the  statute.  The  objection  was  merely  made  on  the 
ground  of  this  supposition,  without  offering  to  produce  witnesses 
to  prove  that  it  was  not  executed  according  to  law.  The  patent 
appearing  on  iis  face  to  have  been  legally  executed,  sealed,  and 
recorded,  it  is  presumed  to  have  been  done  by  the  proper  officers 
until  the  contrary  appears;  3  Starkie's  Evidence,  1248,  1249, 
1250.  10  East.  216.  3  East.  200.  Hartwell  vs.  Root,  19 
Johns.  Rep.  347.  PoWg  lessee  vs.  Wendell,  9  Cranch,  98.  5 
Wheat.  304.  2  Peters,  237.  15  Peters,  490. 

But  if  this  objection  to  this  deed  were  sustained  by  legal  proof, 
the  act  of  Congress  entitled  an  act  to  confirm  land  patents,  ap- 
proved March  3d,  1841,  cured  this  alledged  defect.  It  is  alledged, 
however,  that  it  only  became  a  legal  patent,  and  vested  the  legal 
title  to  the  land  in  the  patentee,  on  the  date  of  its  confirmation, 


20  REPORTS. 

and  not  before.  Congress  has  the  sole  power  to  dispose  of  the 
public  domain,  and  to  declare  the  dignity  and  effect  of  titles  ema- 
natingfrom  the  United  States,  and  as  it  is  not  restrained  by  the  con- 
stitution from  passing  such  a  law,  its  propriety  and  constitutional- 
ity cannot  be  questioned.  Even  in  the  states  where  legislatures 
are  restricted  and  restrained  from  passing  laws  impairing  the  obli- 
gation of  contracts,  such  statutes  of  confirmation  or  correction  are 
common.  The  Supreme  Court  of  Pennsylvania,  in  the  case  of 
Underwood  vs.  Lilly,  (10  Sergt.  &  Rawle,  97,)  decided  that  the 
act  of  assembly  of  that  state  confirming  certain  judgments  in  York 
county,  was  not  unconstitutional,  although  retro-active.  A  simi- 
lar decision  was  made  on  the  constitutionality  of  the  act  curing 
defects  in  previous  acknowledgments  of  deeds  by  femrnes  covert. 
Barnet  vs.  Barnet,  15  Scrgt.  &  Rawle,  72.  Tale  vs.  Stooltz- 
foos,  15  Sergt.  &  Rawle,  35.  -Mercer  vs.  Watson,  1  Watts' 
Rep.  356.  A  similar  decision  was  made  by  the  same  court,  res- 
pecting an  act  providing  for  the  closing  of  the  concerns  of  bank- 
ing institutions,  although  that  act  operated  upon  suits  pending  at 
the  time  of  its  passage,  so  as  to  render  them  valid:  Blackncy  vs. 
The  Bank  of  Green  castle,  17  Scrgt.  &  Rawle,  G4.  Similar  de- 
cisions have  been  made,  to  a  very  great  number,  on  similar  laws, 
some  of  which  will  be  found  in  1  Rawle,  181.  2  Watts,  433.  2 
Rawle,  374.  7  Sergt.  &  Rawle,  200.  11  Sergt.  &  Rawle,  191. 
The  fourth  and  fifth  errors  assigned,  are  upon  the  rejection  of 
a  duplicate  receipt  from  the  Receiver  of  public  moneys  for  the 
Mineral  Point  Land  District,  to  defendant,  for  the  land  in  dispute, 
and  other  evidence  connected  with  the  possession  and  entry  of 
this  land  previous  to  the  patent.  This  receipt  is  dated  on  the 
loth  March,  1830,  and  the  patent  of  plaintiff  is  dated  on  the  27th 
April,  1840,  but  it  does  not  appear  when  the  patentee  paid  for  the 
land  and  obtained  his  receipt.  In  a  court  of  law,  the  patent  is 
conclusive.  Even  in  the  case  of  conflicting  patents,  the  first  pa- 
tent is  conclusive,  and  relief  can  only  be  had  in  a  court  of  chan- 
cery. 10  John.  Rep.  23.  12  John.  Rep.  70.  9  Crancb,  98.  15 
Peters,  105.  7  Wheaton,  1.  15  Peters,  490.  It  is  true  that 
there  is  no  objection  in  going  into  facts  behind  the  patent  in  sup- 
port of  the  title,  particularly  in  states  where  there  is  no  court  of 
chancery,  it  may  be  necessary;  but  in  this  Territory  we  have  a 
court  of  chancery  of  sufficient  power  to  inquire  into  the  equitable 
interests  of  the  parties.  There  might  have  been  no  impropriety 


REPORTS.  21 

in  receiving  the  evidence  offered,  but  it  could  not  prevail  against 
the  patent  of  the  plaintiff,  under  the  charge  of  the  court;  but  as 
there  was  no  offer  to  accompany  the  evidence  offered  with  a  pa- 
tent, the  court  was  right  in  rejecting  it.  An  equitable  title  can- 
not prevail  in  an  ejectment  against  a  legal  title.  In  an  ejectment, 
the  parties  are  confined  to  their  legal  rights.  If  there  is  equity 
in  the  case,  it  must  be  disposed  of  in  the  court  of  chancery. 

The  first  and  second  errors  assigned  relate  to  the  refusal  of  the 
court  to  put  off  the  trial  on  affidavits  filed.  As  these  affidavits 
contain  a  statement  of  facts  not  then  in  the  possession  of  the  party, 
as  the  ground  of  the  application,  and  as  it  abundantly  appears  that 
the  same  or  similar  matters  were  properly  rejected  by  the  court, 
and  that  these  would  also  have  .been  rejected  if  offered,  the  court 
will  not  reverse  the  judgment. 

The  sixth  error  assigned  was  withdrawn  in  the  argument. 

Judgment  of  the  District  Court  affirmed  with  costs. 

MOSES  M.  STHONG,  for  pl'ff  in  error. 

T.  P.  BURNETT  and  F.  J.  DUNN,  for  deft  in  error. 


2*2  REPORTS, 


THE  UNITED  STATES,  ex  relalioni  \ 

THOMAS  J.  NOYES,  (   ,.,  ..      ,       ,.     , 

>  Motion  for  a  Mandamus. 

ALLEN  W.  HATCH,  ) 

THE  act  of  Congress  donating  land  to  the  Territory  to  aid  in  the  con- 
struction of  the  Milwaukee  anil  Rock  River  Canal,  authorizes  the  Legis- 
lature to  elect  or  appoint  the  persons  to  manage  and  dispose  of  the  land. 

The  Register  and  other  officers  appointed  for  the  disposal  of  said  lands 
are  not  civil  nffii-ers  within  the  meaning  of  the  constitution  or  the  organic 
law,  and  the  legislature  has  the  right  to  appoint  them  directly  by  naming 
them  in  the  law,  or  to  elect  them  under  an  existing  law  providing  for  that 
mode  of  filling  those  offices ;  and  the  exercise  of  this  power  does  not  conflict 
with  the  right  of  the  Executive  to  appoint  all  civil  officers. 

The  term  civil  officers,  according  to  the  meaning  of  the  organic  law  and 
the  constitution,  embraces  only  those  officers  in  whom  a  portion  of  the  sov- 
ereignty or  municipal  regulations,  or  the  general  interests  of  society  are 
vested,  and  does  not  mean  such  oiBcers  as  canal  commissioners. 

This  was  a  motion  for  a  mandamus.  Both  the  relator  and  the 
respondent  claim  to  be  Register  of  the  Board  of  Commissioners 
of  the  Milwaukee  and  Rock  River  Canal  Company,  and  the  case 
was  brought  before  this  Court  to  test  the  right  to  the  office.  The 
affidavit  of  the  relator  states,  that  on  the  22d  day  of  February, 
1842,  he  was  appointed  by  the  Governor,  Register  of  the  Board 
of  Commissioners  of  the  Milwaukee  and  Rock  River  Canal  Com- 
pany, and  commissioned  until  the  end  of  the  next  session  of  the 
legislature :  That  on  the  13th  of  March  he  took  the  oath  and  gave 
the  bond  required  by  law,  which  bond  was  accepted  and  approved 
by  the  Governor,  and  immediately  entered  upon  the  duties  of  his 
office,  which  he  has  continued  to  discharge  ever  since:  And  that 
the  respondent  has  in  his  possession,  the  books,  documents,  charts 
and  papers  pertaining  to  the  said  office,  and  refuses  to  deliver  them 
to  the  relator,  although  demanded  of  him,  and  evidence  of  the 
appointment  and  qualification  of  the  relator  had  been  exhibited 
to  him. 

By  agreement  of  the  parties,  a  rule  to  show  cause  was  consid- 
ered as  having  been  entered,  and  the  case  was  submitted  upon  an 
application  for  a  peremptory  mandamus. 

The  respondent  showed  for  cause,  that  on  the  18th  day  of  Feb- 
ruary, 1842,  he  was  duly  elected  to  the  said  office,  on  joint  ballot 
of  both  houses  of  the  legislative  assembly;  that  he  has  duly  taken 


REPORTS.  23 

and  subscribed  the  oath  of  office  required  by  law,  and  executed 
the  requisite  bond,  which  was  approved  by  the  District  Attorney 
for  the  county,  and  presented  the  same  to  the  Governor  fur  his 
acceptance  and  approval,  who  refused  to  approve  and  accept  said 
bond,  on  the  ground,  as  allcdged,  that  the  respondent  was  not  law- 
fully in  office.  The  respondent  insists;  that  having  been  duly 
elected  to  said  office  according  to  the  provisions  of  the  existing 
law,  and  having  done  all  in  his  power  to  qualify  himself  legally, 
he  has  a  right  to  retain  the  possession  of  said  books,  documents, 
charts  and  papers;  that  the  relator  has  not  been  appointed  to  said 
office  according  to  law,  and  that  the  application  before  the  court 
should  be  denied. 

STOW  for  relator: 

The  office  of  Register  of  the  Board  of  Commissioners  of  the 
Canal  Company,  being  created  by  law,  can  only  be  filled  by  ap- 
pointment of  the  Governor,  according  to  the  provisions  of  the  law 
organizing  the  Territory.  The  act  of  the  legislature  of  26th  Feb- 
ruary,1839,  creating  the  office,  was  in  accordance  with  this  prin- 
ciple, and  provided  that  the  office  should  be  filled  by  executive  ap- 
pointment. The  act.  of  llth  January,  1840,  providing  for  the 
election  of  the  canal  officers  by  joint  ballot  of  both  houses  of  the 
legislature,  conflicts  with  the  organic  law  and  must  be  regarded 
as  nugatory.  These  are  civil  officers,  or  they  are  not  officers  at 
all.  Blackstone  defines  an  officer  to  be  a  person  clothed  with  au- 
thority to  exercise  a  public  employment  and  receive  the  fees  and 
emoluments  therefor.  These  canal  commissioners  exercise  a 
public  employment  to  which  emoluments  are  attached  by  law, 
which  the  incumbents  have  a  right  to  receive;  they  are  therefore 
strictly  within  the  definition  of  the  term,  and  as  their  duties  are 
purely  of  a  civil  nature,  they  must  be  civil  officers,  who,  the  or- 
ganic law  says,  shall  be  appointed  by  the  Governor. 

The  validity  of  the  act  of  1840,  under  which  the  respondent 
claims  the  office,  involves  a  question  of  much  greater  importance 
than  the  mere  contest  between  individuals.  The  power  of  legis- 
lation is  limited  to  rightful  subjects.  No  subject  is  a  rightful 
subject  of  legislation,  which  conflicts  with  the  Constitution  of  the 
United  States,  the  laws  of  Congress,  or  the  ordinance  of  1787. 
It  is  conceived  that  the  act  of  the  Legislative  Assembly  of  1840, 
conflicts  with  the  provisions  of  the  organic  law  in  prescribing  the 
mode  of  filling  these  offices,  and  that  therefore  the  subject  is  not 


24  REPORTS. 

a  rightful  subject  of  legislation:  If  so,  the  act  will  be  declared 
void.  The  office,  however,  exists  under  the  former  law,  and  will 
remain.  The  relator  has  been  appointed  to  this  office  in  the  man- 
ner pointed  out  in  the  act  of  Congress,  and  is  lawfully  entitled  to 
the  books  and  papers  belonging  to  it. 

WHITON  for  respondent: 

We  contend  that  the  canal  commissioners  are  not  officers  with- 
in the  meaning  of  the  organic  law.  We  will  examine  the  ques- 
tion. 

1st.  Are  they  such  officers?  Certainly  they  are  officers  of  some 
kind,  but  not  such  officers  as  were  contemplated  by  the  law. 
That  law  did  not  intend  to  include  every  peson  exercising  any 
kind  of  public  employment,  such  as  road  commissioners,  bank  or 
canal  commissioners.  Persons  required  by  law  to  do  some  spe- 
cific acts,  are  not  officers  within  the  meaning  of  the  act  of  Con- 
gress. 

2d.  Admitting  these  persons  to  be  officers  %vithin  the  meaning 
of  the  organic  law,  the  right  of  the  executive  to  appoint  them  is 
superseded  by  the  act  of  Congress  donating  the  canal  lands:  (See 
acts  of  Congress  of  1838,  page  70,  sec  1,  2.)  Here  is  a  donation 
of  lands  for  a  specific  purpose,  and  their  entire  control  is  vested  in 
the  legislature  of  the  Territory,  or  such  person  as  the  legislature 
may  appoint.  The  canal  commissioners  are  merely  the  agents  of 
the  Territory  to  effect  the  acts  of  Congress  and  of  the  legislature 
in  relation  to  these  lands.  If  the  Governor  has  the  right  to  ap- 
point them,  he  has  the  power  to  remove  them,  and  thus  he  might 
take  from  the  legislature  the  control  of  the  canal  lands  which  was 
given  to  it  by  Congress. 

3d.  The  power  of  the  legislature,  when  exercised  upon  a  right- 
ful subject,  can  only  be  questioned  by  Congress,  and  that  body 
must  disapprove  the  act  before  its  validity  can  be  called  in  ques- 
tion. 

ARNOLD,  in  continuation: 

This  is  a  case  of  first  impressions.  There  is  no  precedent  or 
authority  to  control  the  court  in  its  decision.  The  question  will 
therefore  be  decided  upon  a  sound  construction  of  the  law  and  the 
reason  of  the  law.  To  arrive  at  a  correct  conclusion,  it  is  not  ne- 
cessary to  show  that  the  respondent  was  lawfully  in  office.  The 
relator  must  show,  affirmatively,  that  he  is  the  lawful  incumbent, 
and  if  he  fails  to  do  this  he  must  fail  in  his  application. 


REPORTS.  25 

By  the  act  of  Congress  donating  the  canal  lands,  the  Territory 
is  made  a  trustee  for  the  purposes  of  the  act,  and  the  ~anal  officers 
are  only  the  agents  of  the  Territory  to  fulfil  that  trust. 

Admitting  that  the  canal  officers  are  civil  officers  within  the 
meaning  of  the  organic  law,  still,  by  a  subsequent  act  of  Congress 
of  equal  validity,  the  appointment  of  these  officers  is  given,  accor- 
ding to  the  fairest  construction,  to  the  legislature.  It  will  be  seen 
upon  examination,  that  there  is  a  material  difference  in  the  word- 
ing of  the  organic  law  and  the  act  donating  the  canal  lands.  By 
the  organic  law  the  Governor  is  made  a  constituent  pait  of  the 
legislative  assembly.  The  word  "  legislature"  does  not  occur  in 
that  act,  but  the  words,  "  legislative  assembly,"  which  means  the 
Governor,  Council,  and  House  of  Representatives,  is  alone  used. 
In  the  latter  act,  the  word  "  legislature"  is  only  used;  and  the  con- 
trol of  the  canal  lands  is  given  to  the  legislature,  to  be  disposed 
of  by  that  body  or  by  such  persons  as  it  shall  appoint  for  that  pur- 
pose. It  seems  clear  that  the  Governor  has  nothing  to  do  with 
filling  these  offices,  unless  the  legislature  gives  him  the  authority. 

WELLS,  in  conclusion: 

There  is  in  reality  but  one  question  involved  in  the  case.  Are 
the  canal  commissioners  civil  officers?  If  they  are,  the  motion, 
must  be  sustained.  If  we  consider  the  nature  of  their  employ- 
ment, their  duties  and  emoluments,  and  compare  them  with  all  le- 
gal definitions  of  the  term  "  officer,"  the  question  must  be  deci- 
ded affirmatively.  The  law  organizing  the  Territory  clearly  vests 
the  power  of  appointment  in  the  Governor,  and  as  the  law  standw 
he  can  only  be  divested  of  the  power  by  implication. 

Judge  MILLER  delivered  the  opinion  of  the  court: 

This  is  an  application  for  a  mandamus,  to  compel  the  respon- 
dent to  deliver  over  to  the  relator,  the  books,  records  and  papers, 
in,  and  pertaining  to,  the  office  of  Register  of  the  Board  of  Canal 
Commissioners  of  the  Milwaukee  and  Rock  River  Canal.  It  is  in 
reality  a  contest  between  the  Governor  and  Legislature  of  the 
Territory  respecting  the  power  of  appointing  the  said  commission- 
ers; and  it  has  received  from  the  court  the  deliberation  and  re- 
search demanded  by  the  dignity  of  the  parties  and  the  great  im- 
portance of  the  question. 

By  an  act  of  Congress,  approved  June  18th,  1838,  entitled  "an 
act  to  grant  a  quantity  of  land  to  the  Territory  of  Wisconsin,  for 
the  purpose  of  aiding  in  opening  a  canal  to  connect  the  waters  of 

4 


26  REPORTS. 

Lake  Michigan  with  those  of  Rock  River,"  there  was  granted  to 
the  Territory  for  the  said  purpose,  the  odd  sections  along  the 
course  of  the  canal,  and  to  be  subject  to  the  disposal  of  the  legis- 
lature of  the  said  Territory  for  the  purpose  aforesaid,  and  no  oth- 
er. The  said  act  further  provides,  that  the  Commissioner  of  the 
General  Lsnd  Office  shall  ascertain,  under  the  direction  of  the 
President  of  the  United  States,  the  particular  lands  granted  to  the 
Territory,  and  shall  cause  duplicate  lists  of  the  same  to  be  prepar- 
ed from  the  plats  on  file  in  his  office,  one  of  which  he  shall  trans- 
mit to  the  Governor  of  said  Territory,  who,  or  such  other  person  or 
persons  as  shall  be  appointed  for  the  purpose  under  the  authority 
of  the  legislature  of  the  Territory,  or  of  the  State  which  may  be 
erected  out  of  the  same,  after  the  admission  of  such  State,  shall 
have  power  to  sell  or  convey,  the  whole,  or  any  part  of  said  lands, 
at  a  price  not  less  than  two  dollars  and  fifty  cents  per  acre,  and 
to  give  a  title  in  fee  simple  therefor  to  whomsoever  shall  pur- 
chase the  whole  or  any  part  thereof. 

In  pursuance  of  this  act  of  Congress,  the  legislative  assembly 
of  the  Territory,  on  the  twenty-sixth  day  of  February.  1839,  pas- 
sed an  act  to  provide  for  aiding  in  the  construction  of  the  Milwau- 
kee and  Rock  River  Canal ;  the  second  section  of  which  provided  for 
tire  appointment,  by  the  Governor,  by  and  with  the  advice  and  con- 
sent of  the  Council,  of  three  Commissioners,  tc  be  stylsd  the 
Board  of  Canal  Commissioners,  one  of  whom  to  be  designated  as 
the  Acting  Commissioner,  one  as  Register,  and  one  as  Receiver, 
and  to  hold  their  offices  for  the  term  of  one  year,  subject,  howev- 
er, to  be  removed  at  the  pleasure  of  the  Governor.  They  were 
also  to  give  bond  with  security,  for  the  faithful  discharge  of  the 
duties  of  their  office.  They  were  also  authorized  to  administer 
oaths  and  examine  witnesses,  touching  any  applications  for  the  re- 
gistry of  lands  under  the  provisions  of  said  act.  They  were  also 
empowered  in  said  act,  to  make  sale  of  the  said  lands,  so  as  afore- 
said granted  to  the  Territory. 

By  an  act  of  the  legislative  assembly,  approved  on  the  eleventh 
day  of  January,  1840,  it  is  provided,  that  the  canal  commission- 
ers shall  be  elected  annually,  on  joint  ballot  of  the  Council  and 
House  of  Representatives  of  the  Territory,  and  shall  hold  their 
oflices  for  the  term  of  one  year,  and  until  others  are  elected  in 
their  places.  This  act,  in  this  particular,  superseded  the  act  of 
the  twenty-sixth  day  of  February,  183'J. 


REPORTS.  27 

It  is  provided  in  an  act  of  Congress,  entitled  "  an  act  establish- 
ing the  Territorial  Government  of  Wisconsin,"  approved  20th 
April,  1836,  that  the  legislative  power  of  the  Territory  shall  be 
vested  in  a  Governor  and  a  Legislative  Assembly ;  and  further,  that 
the  Governor  shall  nominate,  and  by.and  with  the  advice  and  con- 
sent of  the  legislative  Council,  appoint,  all  judicial  officers,  jus- 
tices of  the  peace,  sherilTs,  all  militia  officers,,  except  those  of  the 
staff,  and  all  civil  officers  not  otherwise  provided  for. 

Under  this  provision  of  the  organic  law,  the  relator  was  appoin- 
ted by  the  Governor,  Register  of  said  board  on  the  22d  day  of 
February,  1842,  during  the  recess  of  the  Council.  The  respon- 
dent was  elected  by  the  Legislative  Assembly,  on  joint  ballot,  on 
the  18th  day  of  the  same  month,  to  the  same  office,  in  pursuance 
of  the  act  of  January,  1840.  They  both  claim  to  exercise  and 
hold  the  same  office  under  their  respective  appointments,  and  the 
question  for  the  determination  of  the  court  is,  which  appointment 
is  legal. 

The  above  mentioned  act  of  Congress,  making  the  said  grant 
of  land,  was  passed  more  than  two  years  after  the  date  of  the  or- 
ganic law  of  the  Territory ;  and  they  are  both  of  equal  power, 
force  and  effect,  in  relation  to  their  respective  objects,  and  are  on 
aa  equality  as  laws  enacted  by  Congress.  The  organic  law  is 
binding  upon  the  legislation  of  the  Territory,  as  the  Constitution  of 
a  State  is  upon  the  action  of  its  legislature;  but  it  is  a  mere  act 
of  Congress,  subject  to  its  amendment,  modification  or  repeal. 
Under  the  Constitution,  it  was  competent  for  Congress  to  legis- 
late directly  for  the  Territory;  but  as  this  would  be  inconvenient, 
and  probably  not  consistent  with  the  immediate  or  local  wants  or 
interests  of  the  people,  the  Territorial  Government  was  created 
by  the  organic  law,  wherein  the  Governor  and  Legislative  Assem- 
bly are  authorized  to  discharge  their  respective  duties  therein  re- 
ferred to,  for  the  interest  and  protection  of  the  people.  Congress 
passed  the  act  of  June,  1838,  with  a  full  knowledge  of  the  organ- 
ic law,  and  of  the  power  grven  therein  to  the  Governor  to  make 
appointments.  This  is  a  law  of  a  peculiar  character  for  a  specific 
purpose — a  mere  grant  for  a  certain  purpose  not  Connected  with 
the  government  of  the  Territory,  or  with  the  respective  functions 
of  the  Governor  and  Legislature,  as  directed  and  authorized  in 
the  organic  law.  The  lands  granted  by  this  act,  were  made  sub- 
ject to  the  disposal  of  the  legislature,  for  the  purpose  mentioned 


28  REPORTS. 

in  the  grant;  and  by  authority  of  the  legislature,  the  Governor 
himself,  or  some  other  person  or  persons,  are  to  be  appointed  to 
make  sales  of  these  lands.  In  order  to  carry  into  full  effect  the 
object  and  intentions  of  this  grant,  it  was  competent  and  proper 
for  the  legislature,  or  legislative  assembly,  to  pass  an  act,  author- 
izing and  appointing  the  Governor  to  act  as  the  commissioner,  or 
to  authorize  the  Governor  to  appoint  the  commissioner,  or  to  ap- 
point the  commissioner  with  the  advice  and  consent  of  the  Coun- 
cil, as  was  done  in  1839,  or  for  the  election  of  a  commissioner  or 
commissioners  on  joint  ballot — and  such  law,  whatever  it  may  be, 
is  the  proper  rule  of  action  until  repealed. 

This  is  an  application  to  the  court,  to  declare  void  the  act  of 
January  1840,  under  which  the  respondent  was  appointed,  on  the 
ground  that  it  conflicts  with  the  organic  law.  It  would  be  the 
right  and  duty  of  the  court  to  do  so  in  a  clear  and  manifest  case; 
12  Sergt.  &  Rawle,  330;  3  Sergt.  &  Rawle,  169;  4  Wheaton's 
Reports.  But  this,  in  the  opinion  of  the  court,  is  very  far  from 
being  such  a  case.  The  propriety  of  the  act  of  January,  1840, 
in  this  particular,  and  of  the  election  or  appointment  of  the  respon- 
dent in  pursuance  of  it,  is  beyond  all  question  or  doubt. 

The  power  of  the  Governor  to  appoint  the  relator,  remains  to 
be  considered.  This  power  is  claimed  for  the  Governor  by  vir- 
tue of  the  seventh  section  of  the  organic  law;  in  which  he  is  au- 
thorized to  nominate,  and  by  and  with  the  advice  and  consent  of 
the  Council,  to  appoint  all  civil  officers,  not  therein  provided  for. 
Laying  aside  the  position  that  this  office  of  canal  commissioner 
was  not  contemplated  by  Congress  at  the  enactment  of  the  organ- 
ic law,  it  may  be  inferred  that  tho  term,  civil  officers,  was  intend- 
ed to  embrace  such  officers  as  in  whom  part  of  the  sovereignty  or 
municipal  regulations,  or  general  interests  of  society  are  vested; 
and  that  such  has  been  the  general  understanding  in  the  states,  un- 
der their  constitutions,  is  known  to  citizens  of  experience  and  ob- 
servation. But  this  question  is  not  without  authority  of  a  very 
respectable  character.  On  page  '244,  of  17  Sergt.  &.  Rawle,  will 
be  found,  quoted  from  3  Greenleaf's  Reports,  482,  which  is  not  in 
the  library,  as  follows: — In  1822,  the  supreme  judicial  court  of 
the  State  of  Maine,  consisting  of  Mellen,  chief  justice,  and  Pre- 
ble  and  Weston,  justices,  in  an  opinion  given  to  the  Governor  of 
that  State,  say — that  the  terms  office  and  officers,  arc  used  in  the 
Constitution  of  Maine,  where  it  prescribes  an  oath  of  office  to  all 


KEPOKTS. 

legislative,  executive,  and  judicia  officers,  imply  a  delegation  of 
a  portion  of  the  sovereign  power  to,  and  possession  of  it,  by  the 
person  filling  the  office,  and  that  a  person  clothed  with  a  resolve 
of  the  legislature,  with  no  other  powers  than  those  of  superintend- 
ing the  public  lauds,  and  performing  cenain  acts  relating  to  them, 
under  the  discretionary  regulation  of  the  Governor,  was  not  an  of- 
ficer, and  therefore  was  not  required  to  take  the  oath. 

By  section  8  of  article  2,  of  the  Constitution  of  Pennsylvania, 
adopted  in  1790,  the  Governor  is  authorized  to  appoint  all  officers 
whose  offices  are  established  by  the  Constitution,  or  shall  be  es- 
tablished by  law,  and  whose  appointments  are  n'ot  therein  other- 
wise provided  for. 

In  the  case  of  the  Commonwealth  ex  rdafloni  Dr.  George  F. 
Lehman  vf.  Dr.  Joel  B.  Sutherland,  5  Sergt.  &.  Rawle,  145 ; 
•which  was  a  rule  to  show  cause  why  leave  should  not  be  granted, 
to  file  an  information  in  nature  of  a  quo  warranto,  against  Joel  B. 
Sutherland,  to  inquire  by  what  authority  ho  exercised  the  office 
of  Lazaretto  physician;  Chief  Justice  Tilghman  uses  the  follow- 
ing language: — The  word,  office,  is  of  very  vogue  and  indefinite 
import.  Every  thing  concerning  the  administration  of  justice,  or 
the  general  interests  of  society,  may  be  supposed  to  be  within  the 
meaning  of  the  Constitution,  especially  if  fees  and  emoluments 
are  annexed  to  the  office.  But  there  are  matters  of  temporary 
and  local  concern,  which,  although  comprehended  in  the  term  of- 
fice, have  not  been  thought  to  be  embraced  by  the  Constitution. 
And  when  offices  of  that  kind  have  been  created,  the  legislature 
have  sometimes  made  the  appointment  in  the  law  which  created 
them;  sometimes  given  the  appointment  to  others  than  the  Gov- 
ernor; and  sometimes  given  the  power  of  removal  to  others,  al- 
though the  appointment  was  left  with  the  Governor.  The  offi- 
cers of  whom  I  am  speaking,  (says  the  Chief  Justice,)  are  of- 
ten described  in  acts  of  Assembly  by  the  name  of  commis- 
sioners. Such,  for  instance,  as  one  employed  in  the  laying  out 
of  roads  and  canals  and  other  works  of  a  public  nature.  Yet  all 
these  perform  a  duty,  or  in  other  words,  exercise  an  office.  So, 
likewise,  officers  within  the  limits  of  a  corporation  are,  generally, 
appointed  by  the  corporation,  unless  they  concern  the  administra 
tion  of  justice.  And  in  order  to  discover  in  what  light  this  office 
of  physician  to  the  board  of  health  has  been  viewed,  the  chief  jus- 
tice traced  the  health  laws  from  their  origin,  and  satisfied  himself 


30  REPORTS. 

that  it  has  been  considered,  and  justly  considered,  as  an  office  un- 
der the  control  of  the  legislature,  and  subject  to  their  modifications 
as  to  appointment,  duration,  and  removal.  Judge  Duncan,  in  his 
opinion  in  the  same  case,  on  page  154,  says:  that  the  power  of 
appointment  to  a  new  office,  without  commission  from  the  Gov- 
ernor, in  the  law  creating  the  office,  has  freqently  been  exercised; 
as  the  commissioners  appointed  by  the  act  of  April,  1794,  to  set- 
tle the  compensation  of  Pennsylvania  claimants  for  lands  within 
the  seventeen  townships  of  Luzerne  county.  The  commissioners 
are  named  and  appointed  by  the  act,  without  any  intervention  of 
the  Governor,  except  in  his  legislative  capacity  of  approving  the 
act.  These  commissioners  were  in  the  nature  of  judicial  officers, 
exercising  important  and  discretionary  powers  and  judicial  func- 
tions; and  although  the  constitutionality  of  many  portions  of  that 
act  has  been  called  in  question>  yet  this  has  never  formed  an  ob- 
jection. Tliu  enumeration  of  such  appointments  would  be  use- 
less. It  would  be  too  much  now,  to  pronounce  that  all  this  was 
usurpation  on  the  constitutional  rights  of  the  Governor,  forbidden 
by  the  Constitution,  and  void.  In  most  cases  of  local  appoint- 
ments, thoy  are  made  by  the  people,  or  by  certain  bodies  of  men 
authorized  by  the  law  creating  the  office.  This  act  and  appoint- 
ment bear  date  but  four  yeara  after  the  adoption  of  the  Constitu- 
tion of  the  State.  In  the  case  of  the  Commonwealth  vs.  Doug- 
lass, 1  Binney,  77,  as  early  as  the  year  1803,  it  appears  that  Doug- 
lass had  been  appointed  an  inspector  of  the  prison  of  Philadelphia 
in  pursuance  of  law.  The  propriety  or  legality  of  the  election 
was  disputed,  but  not  the  constitutionality  of  the  law  under  which 
it  was  made.  Chief  Justice  Tilghman,  in  the  case  of  The  Common- 
wealth ex  rclalioni  Reynolds  vs.  Bnssier,  3  Sergt.  &L  Rawle,  457, 
says:  it  is  understood,  that  in  what  I  have  said,  I  do  not  mean  to 
include  certain  officers,  (so  called,  when  that  word  is  taken  in  its 
largest  sense,)  of  a  local,  limited,  or  corporate  nature,  which  have 
not  been  supposed  to  be  comprehended  in  the  Governor's  power 
of  appointment.  By  the  Constitution  of  Pennsylvania,  art.  5,  see. 
2,  it  is  declared,  that  the  judges  of  the  supreme  court,  and  the 
presidents  of  the  several  courts  of  common  pleas,  shall  not  hold 
any  other  office  of  profit  under  the  Commonwealth.  Thomas 
Cooper,  while  acting  as  a  cornmissionei  to  settle  the  compensa- 
tion to  claimants  to  lands  in  Luzerne  county,  above  referred  to, 
was  appointed  a  president  judge;  and  his  acts  as  such  commis- 


REPORTS.  31 

sioner,  after  he  qualified  as  such  judge,  were  objected  to  in  the 
case  of  Shepherd  vs.  The  Commonwealth,  J  Sergt.  &,  Rawle,  1 .  It 
was  there  decided,  that  the  office  of  commissioner,  which  Judge 
Duncan,  in  the  case  above  referred  to,  said  was  in  the  nature  of 
a  judicial  office,  exercising  important  and  discretionary  powers 
and  judicial  functions,  was  not  an  office  within  the  meaning  of  the 
Constitution. 

By  the  same  Constitution,  art.  1,  sec.  18,  no  person  holding 
any  office  under  the  United  States,  or  that  Commonwealth,  shall 
be  a  member  of  either  house  of  the  Legislature  during  his  contin- 
uance in  office.  Charles  Biddle,  a  member  of  the  Senate  of  Penn- 
sylvania, was  appointed  by  the  President  of  the  United  States,  to 
act  as  a  commissioner  to  sign  bills  or  notes,  called  treasury  notes, 
issued  under  the  authority  of  the  act  of  Congress,  for  which  he  re- 
ceived a  compensation.  The  question  was  brought  before  the 
Senate,  who  decided  that  his  seat  was  not  thereby  vacated;  1 
Sergt.  &  Rawle,  10.  The  same  Constitution  declares  the  hold- 
ing of  offices  or  appointments  under  the  Slate,  incompatible  with 
holding  or  exercising  offices  or  appointments  under  the  United 
States.  Under  this  provision,  together  with  the  laws  passed  in 
addition  thereto,  the  Supreme  Court  of  that  State  decided  by  a 
majority,  in  the  case  of  The  Commonwealth  vs.  John  Binns,  17 
Sergt.  &  Rawle,  219,  that  the  selection  of  an  editor  of  a  newspa- 
paper  to  print  the  laws  of  the  United  States,  by  the  Secretary  of 
State  of  the  United  States,  in  not  conferring  an  office  or  appoint- 
ment under  the  United  States,  incompatible  with  the  office  of  Al- 
derman of  the  City  of  Philadelphia. 

The  different  acts  of  the  Legislature  of  Pennsylvania  respect- 
ing the  internal  improvement  system  of  that  State,  from  1825  to 
1829,  authorized  the  Governor  to  appoint  the  Canal  Commis- 
sioners; but  by  the  act  passed  in  1829,  the  power  of  the  Govern- 
or to  appoint  them  was  revoked,  and  they  were  appointed,  in  pur- 
suance of  law,  by  the  legislature.  Although  the  board  of  com- 
missioners was  clothed  with  immense  powers  in  the  disbursement 
of  money,  and  extensive  patronage,  it  is  not,  after  a  diligent  re- 
search, to  be  found  in  the  books  of  reports,  that  the  Governor's 
rights  or  prerogative,  under  the  Constitution,  which  authorized 
him  to  appoint  all  officers,  which  officers  are  established  by  that 
Constitution,  or  shall  be  established  by  law,  were  questioned,  or 
thai  the  constitutionality  of  the  law  under  which  the  legislature 


32  REPORTS. 

made  the  appointment,  was  brought  to  the  attention  of  the  courts. 
It  is  true,  that  this  power  was  afterwards  restored  to  the  Governor 
by  subsequent  acts  of  the  legislature,  but  the  precedent  remains. 

It  would  be  too  tedious  to  refer  particularly  to  all  the  cases  that 
have  been  decided  in  that  State,  by  the  people,  the  legislature,  and 
the  courts,  giving  a  construction  to  the  term  office,  as  understood  in 
•the  Constitution.  Many  cases,  cited  by  the  judges  in  their  opin- 
ions, in  the  causes  above  stated,  and  not  mentioned  here,  are  re- 
ferred to. 

The  Legislative  Assembly  of  this  Territory  seems  to  have  put 
the  same  construction  on  the  term,  office,  in  the  organic  law,  at  its 
first  session  after  the  organization  of  the  Territory.  By  an  act  ap- 
proved on  the  3d  December,  1836,  three  commissioners  were  to 
be  elected  by  joint  ballot  of  the  Council  and  House  of  Represen- 
tatives, whose  duty  was  to  cause  the  necessary  public  buildings 
to  be  erected  at  Madison,  for  the  accommodation  of  the  Assem- 
bly and  other  officers  of  the  territorial  government.  The 
treasurer  of  said  board,  to  be  elected  under  said  law,  was  also  to 
give  bond  with  security  for  the  faithful  discharge  of  his  office.  Un- 
der this  law  commissioners  were  elected  and  qualified,  as  appears 
by  the  public  records.  This  is  called  an  office,  so  is  the  commis- 
sioner under  consideration;  so  are  those  generally  in  the  cases  re- 
ferred to;  but  it  appears  that  they  are  not  such  officers  as  are  con- 
templated by  the  Constitutions  referred  to,  or  our  organic  law. 

Motion  for  mandamus  overruled. 

STOW  &,  WELLS,  for  relator. 

N  &.  ARNOLD,  for  respondent. 


REPORTS. 


33 


JOSEPH  ROOKER,  pPffin  error,        "| 

NELSON^.  NORTON,  deptin error,  \ 

AND  }•  Error  to  Racine  county. 

NELSON  R.  NORTON,  pPJfin  error, 

vs. 
JOSEPH  ROOKER,  deft  in  error,       J 

THE  Court  will  not  decide  an  act  of  the  Legislature  to  be  unconstitu- 
tional, unless  (he  case  is  clear  and  manifest. 

The  statute  of  Wisconsin,  authoring  the  district  courts  to  refer  certain 
cases  to  referees,  is  not  unconstitutional;  and  the  district  court  may  refer 
such  a  case  against  the  wili  of  either  partj,  and  such  a  reference  does  not 
violate  the  right  of  trial  hy  jury  secured  by  the  constitution. 

The  object  of  the  constitution  was  to  secure  to  every  one  a  trial  by  his 
peers,  and  this  right  is  as  well  secured  in  the  hands  of  sworn  referees  as  a 
common  law  jury. 

A  report  of  referees  which  reports  a  sum  certain  found  to  be  due  and  the 
testimony  upon  which  the  decision  is  based,  is  sufficiently  certain,  although, 
it  does  not  state  the/acfo  which  they  find,  or  show  what  particular  claims 
have  been  allowed  or  disallowed. 

Partial  failure  of  the  consideration  of  a  note,  may  be  given  in  evidence 
on  the  trial,  where  notice  has  been  given  of  the  defence  intended  to  be  set 
up,  but  it  cannot  be  given  in  evidence  under  the  general  issue  without  no- 
tice. 

A  notice  of  special  matter  to  be  given  in  evidence  under  the  genera)  is- 
sue, need  not  be  as  formal  as  a  special  plea:  if  it  contains  matter,  which, 
if  embodied  in  a  formal  plea,  would  be  decided  on  general  demurrer  to  be 
abar  to  the  action,  and  is  set  out  so  certain  that  the  plaintiff  is  apprised  of 
the  fact  and  not  taken  by  surprise,  it  is  sufficient. 

Although  unliquidated  damages  cannot  be  set  off  against  a  certain  de- 
mand, yet  where  the  damages  arise  from  a  breach  of  the  plaintiff's  con- 
tract which  formed  a  part  of  the  consideration  of  the  note  sued  on,  they 
may  be  given  in  evidence  under  a  notice,  for  the  purpose  of  reducing  the 
plaintiff's  damages. 

Where  referees  report  a  sum  certain  to  be  due  to  the  plaintiff,  and  also 
make  a  conditional  report,  stating  that  they  find  a  sum  certain  to  be  due 
from  the  plaintiff  to  the  defendant  which  in  their  opinion  cannot,  according 
to  law,  be  allowed  in  the  same  action,  but  that  if  their  opinion  of  the  law 
is  erroneous,  then  the  sum  found  to  be  due  to  the  defendant  is  to  be  deducted 
from  the  amount  found  in  favor  of  the  plaintiff,  the  Court  may,  if  the  mat- 
ters found  in  favor  of  the  defendant  can  be  legally  taken  into  considera- 
tion, confirm  both  reports  and  enter  judgment  for  the  balance  in  favor  of 
the  plaintiff. 

A  promise  by  the  defendant  to  pay  a  promissory  note,  not  negotiable,  to 
an  assignee,  although  made  unconditional,  does  not  preclude  the  defend- 
ant from  setting  up  a  failure  of  consideration  in  a  suit  subsequently  brought 
by  the  payee  when  there  is  nothing  to  show  that  the  suit  is  for  the  benefit 
of  a  third  person. 

These  were  cross  writs  of  error  brought  to  reverse  a  judgment 
of  the  Racine  District  Court. 

Norton  brought  an  action  of  assumpsit  against  Rooker  in  the 

5 


34  REPORTS. 

court  below,  upon  a  promissory  note  for  $464,  dated  at  Chicago^ 
21st  July,  1838,  payable  one  year  after  date,  in  boots  and  shoes 
to  be  .delivered  at  Foxville,  in  Racine  county.  The  declaration 
also  contained  the  common  money  counts  accompanied  with  a 
copy  of  the  note  and  a  bill  of  particulars.  Rooker  pleaded  the 
general  issue,  and  gave  notice  of  special  matter  to  be  given  in 
evidence,  to  wit:  that  the  note  sued  on  was  given  without  consid- 
eration, and  was  obtained  by  fraud,  and  deceitful  misrepresenta- 
tions of  the  plaintiff;  set  off  with  a  bill  of  particulars,  in  which  he 
claimed  81000:  for  Norton's  failing  to  fulfil  a  verbal  contract  to 
finish  certain  buildings  on  Rooker's  farm,  and  dig  and  wall  a  cel- 
lar under  his  house. 

The  District  Court  ordered  the  case  to  be  referred  to  three 
referees,  to  which  order  of  reference  Rooker  objected. 

The  referees  reported  to  the  court,  that  there  was  due  from 
Rooker  to  Norton  the  sum  of  $300,  besides  costs.     They  also  re- 
ported, by  way  of  supplement,  that  there  was  due  from  Norton  to 
Rooker — 
For  damages  for  not  digging  and  completing  cellar  according  to 

contract,  $200  00 

For  not  finishing  wood-shed  and  granery,  41  00 

For  not  finishing  barn,  and  damage,  10  50 

Amounting  in  all  to  the  sum  of  $257  50:  that  the  allowance 
of  these  sums  was  objected  to  by  Norton,  on  the  ground  that  they 
were  not  proper  subjects  of  set-off,  which  objection  was  sustained 
by  the  referees;  but  they  say,  that  if  they  erred  in  that  decision, 
then  the  sum  of  $257  50  is  to  be  deducted  from  the  sum  found 
in  favor  of  Norton,  who  is  to  recover  the  balance.  The  referees 
also  reported  the  evidence  taken  before  them, 

Rooker  excepted  to  the  report  of  the  referees;  the  substance 
of  which  exceptions  is  embodied  in  his  assignment  of  errors. 

The  District  Court  confirmed  the  report  and  supplement,  and 
gave  judgment  in  favor  of  Norton  for  the  balance,  after  deducting 
the  claim  of  Rooker  for  damages  as  found  in  the  supplement  of 
the  referees.  Both  parties  were  dissatisfied  with  the  decision  of 
the  court:  Norton  contending  that  he  was  entitled  to  his  whole 
claim  as  found  by  the  referees  without  any  deduction,  and  Rooker, 
that  the  whole  judgment  should  be  reversed,  and  each  party  has 
brought  the  case  into  this  court  to  correct  the  errors  of  the  court 
below. 


REPORTS,  35 

Hooker  assigned  the  following  errors  in  the  proceedings  of  the 
District  Court. 

1.  The  court  erred  in  referring  this  cause  to  referees  against 
the  consent  of  the  plaintiff  in  error,  (defendant  below,)  the  action 
being  a  common  law  action. 

2.  The  court  erred  in  ruling  that  it  was  not  necessary  for  the  re- 
ferees to  report  the  facts  as  found  by  them  in  the  trial  of  the  cause. 

3.  The  court  erred  in  ruling  that  it  was  not  necessary  for  the 
referees  to  make  report  of  what  they  had  allowed  of  plaintiff's 
claim,  or  disallowed,  or  what  they  had  allowed  or  disallowed  of 
the  claim  of  set  off  of  the  defendant  below. 

4.  The  court  erred  in  ruling  that  the  referees  decided  proper- 
ly in  finding  tint  misrepresentations,  as  proved,  did  not  avoid  the 
note  in  suit. 

5.  The  court  erred  in  accepting  the  report  of  the  referees,  and 
entering  judgment  thereon. 

And  Norton  made  the  following  assignment  of  errors  en  his 
part: 

The  damages  which  the  defendant  sustained,  as  icported  by  the 
referees,  ought  not  to  have  been  deducted  from  the  plaintiff's  de- 
mand for  the  following  reasons; 

1.  By  the  agreement  of  the  parties,  the  payment  of  the  note 
was  a  condition  precedent  to  the  doing  the  work  for  the  not  doing 
of  which  the  defendant  complains  that  he  has  sustained  damages. 

2.  The  defendant  having  once  promised  to  pay  the  note  in  the 
hands  of  an  assignee,  was  ever  after  barred  from  setting  up  a  want 
or  failure  of  consideration. 

3.  Partial  failure  of  consideration  cannot  be  set  up  in  defence 
of  a  note. 

4.  Unliquidated  damages  cannot  be  set  off. 

5.  There  were  fatal  variances  between  the  contract  proven 
and  the  one  pleaded. 

The  causes  were  argued  separately.  In  the  case  of  Rooker  vs. 
Norton,  TOWSLEE  for  plaintiff  in  error  contended: 

1.  The  order  of  the  court  below,  referring  the  cause  to  re- 
ferees, against  the  will  of  Rooker,  was  erroneous.  This  is  a  com- 
mon law  action,  and  the  value  in  controversy  exceeds  twenty  dol- 
lars. The  defendant  below  insisted  upon  a  trial  by  jury.  The 
right  to  this  is  secured  to  him  by  the  constitution  of  the  United 
States,  and  it  is  not  competent  for  the  legislature  and  the  courts 


36  REPORTS. 

to  substitute  another  mode  of  trial.     See  Art  7,  of  the  amend- 
ments to  the  constitution,  1  Aiken,  148. 

2.  The  report  of  the  referees  ought  to  have  been  set  aside  by 
the  court  below.     The  report  ought  to  have  stated  the  facts,  and 
not  the  testimony  at  length.     The  report  should  be  like  a  special 
verdict  of  a  jury,  to  enable  the  court  to  apply  the  law  to  the  facts, 
and  not  a  mere  report  of  evidence  without  any  statement  of  facts 
established  by  it.     1  Aiken's  Rep.  148;  id.  359.     1  Vermont 
Rep.  250;  3  do.  359;  id.  359.     Law  Reporter,  Vol.  1,  No.  2.  5 
American  Digest,  52,  53. 

3.  The  report  should  have  stated  the  accounts  between  the 
parties,  and  shown  what  had  been  allowed  or  disallowed  of  each. 
A  report  showing  a  gross  sum  to  be  due  to  either,  without  stating 
the  facts  upon  which  the  decision  is  based,  is  erroneous.     The 
referees  should  not  report  a  gross  sum  in  the  nature  of  a  general 
verdict,  for  they  are  not  the  jury;  they  are  only  auditors  or  mere 
officers  of  the  court,  and  cannot  decide  the  cause,  but  only  pie- 
pare  the  case  for  the  judgment  of  the  court.     1  Aiken's  Rep.  359. 

3  Vermont  Rep.  389;  id.  597.     Law  Reporter,  Vol.    1.  No.  2. 

4  Cranch,  307.    6  Cranch,  9  to  29. 

4.  Fraudulent  representations,  or  the  concealment  of  defects 
in  the  property  sold,  will  avoid  all  contracts,  and  the  defence  may 
be  made  under  the  general  issue.     If  it  was  proven  befere  the  re- 
ferees that  ihe  note  sued  on  was  obtained  by  false  and  fraudulent 
representations,  or  that  Norton  concealed  material  defects  in  the 
property  sold  to  Rooker,  for  which  the  note  was  given,  or  misrep- 
resented its  quality  and  value,  the  referees  ought  to  have  disal- 
lowed the  whole  of  Norton's  claim.     Com.  on  Contracts,  35,  66, 
207,  209.     12  East.  637.     2  Saund.  Plead.  &  Ev.  907.     3  John. 
280.     Cowen  &,  Hill's  Notes  to  Phil.  Ev,  part  2,  page   1475. 
Sugden's  Vendors  and  Purchasers,  5. 

The  proof  in  this  case  shows  that  Rooker  wished  to  purchase  a 
farm  of  a  particular  description,  and  possessing  particular  advanta- 
ges; that  Norton  represented  that  he  had  one  to  sell  of  just  such 
description,  which  he  thereupon  sold  to  Rooker,  for  which  the 
note  in  suit  was  given  in  part,  and  that  these  representations  were 
false;  Norton  is  therefore  not  entitled  to  recover. 

MARSHALL  M.  STRONG,  for  deft  in  error: 

The  statute  of  the  Territory  authorizing  the  courts  to  refer  ca- 
ses, is  perfectly  constitutional.  The  meaning  of  the  article  in 


REPORTS.  37 

the  constitutution  that  has  been  referred  to  is,  that  a  man  shall  be 
tried  by  his  peers,  and  not  by  persons  permanently  connected 
with  the  court,  and  the  number  is  not  material.  Our  statute  is 
copied  from  the  statute  of  New  York,  (see  2  Revised  Statutes  N. 
Y.  384,)  which  has  been  in  force  in  that  state  since  1812,  and  its 
constitutionality  has  never  been  questioned  there.  Again,  by  the 
laws  of  New  York,  in  cases  before  a  justice  of  the  peace,  where 
the  judgment  is  under  $25,  no  appeal  can  be  taken.  A  justice's 
jury  consists  of  six  persons.  Thus  cases  where  the  amount  of 
the  judgment  is  between  $20  and  $25,  although  they  come 
under  the  constitutional  provision  relied  upon  here,  are  tried  by 
ajury  of  six,  a  number  unknown  to  the  common  law  as  composing 
a  jury.  This  law  has  also  the  sanction  of  long  standing  without 
its  validity  being  questioned.  Referees,  under  the  statute,  are 
sometimes  called  a  legislative  jury;  they  answer  every  purpose, 
and  secure  every  right  that  could  be  effected  by  a  common  law 
jury. 

The  report  of  the  referees  is  not  liable  to  the  objection  em- 
braced in  the  second  and  third  errors  assigned.  The  form  of  the 
report  is  adopted  precisely  from  Yates'  Pleading,  p.  799.  The 
practice  that  has  been  pursued  in  this  case  in  relation  to  the  re- 
ference, prevails  in  New  York  under  a  similar  law.  Yates'  Plead- 
ing, 339.  Graham's  Practice,  576.  4  Wendell,  199.  The  ca- 
ses that  have  been  referred  to  by  the  plaintiff's  counsel,  from 
Cranch,  are  where  auditors  were  appointed  in  equity  causes,  and 
do  not  apply  to  this  case;  and  those  in  the  Vermont  Reports  arose 
under  the  peculiar  provisions  of  the  statute  of  that  state,  which  is 
not  analogous  to  ours. 

The  fourth  point  assumed  is  not  sustained  by  the  evidence. 
The  proof  shows  that  Rooker  spent  several  days  at  Norton's  house 
on  the  farm,  and  examined  it  for  himself  before  he  purchased; 
and  in  such  case  the  rule  of  caveat  cmptor  applies.  But  if  the 
contract  is  void,  it  is  void  in  toto.  Rooker  cannot  keep  the  farm 
and  enjoy  it  for  years  and  avoid  paying  for  it. 

MOSES  M.  STRONG,  in  conclusion: 

One  of  the  most  important  points  in  the  case,  is  the  one  first 
suggested  by  (he  plaintiff  in  error.  To  decide  upon  the  constitu- 
tionality of  a  law,  is  always  a  grave  matter  in  the  consideration  of 
the  court;  but  when  an  act  of  the  legislature  is  shown  plainly  to 
conflict  with  the  constitution,  the  court  will  not  hesitate  so  tode- 


38  REPORTS. 

cide.  The  right  of  (rial  by  jury,  has  always  been  considered  one 
of  the  most  valuable  rights  secured  to  American  citizens.  This 
right  was  not  created  or  granted  by  the  constitution;  it  existed 
before  the  constitution,  as  the  birth-right  of  every  American,  and 
the  constitution  only  confirms  and  secures  the  right.  If  we  give 
a  common  sense  construction  to  the  7th  article  of  the  amend- 
ments, we  must  como  to  the  conclusion  that  the  act  of  the  legis- 
lature authorizing  the  courts  to  substitute  referees  instead  of  a 
jury  agninstthe  wiil  of  a  party,  violates  its  provisions.  The  re- 
ferees have  been  called  a  legislative  jury.  It  matters  not  by  what 
name  they  are  called,  they  are  not  the  jury  that  the  party  had  a 
right  to,  to  try  his  cause,  when  the  constitution  was  adopted;  they 
do  not  possess  any  of  the  attributes  of  a  jury;  the  party  has  not 
the  benefit  of  a  trial  before  the  court  and  jury  together,  and  the 
instructions  of  the  court  to  the  jury  upon  the  law  of  the  case. 

The  objections  to  the  report  itself  are  based  upon  the  supposi- 
tion that  tho  order  of  reference  is  legal.  Admitting  the  order  to 
have  been  legally  made,  slill  the  report  is  bad,  and  ought  not  to 
have  been  confirmed  by  the  court.  The  referees  have  reported 
testimony  when  they  should  have  reported  facts;  they  have  left 
the  court  to  ascertain  the  facts  from  the  testimony,  and  the  court 
became  the  judge  of  tiic  facts  as  well  as  the  law.  If  they  come  in 
place  of  a  jury,  arid  are  to  ba  considered  as  a  jury  for  all  legal  pur- 
poses, they  ought  to  have  decided  what  facts  were  proven  by  the, 
testimony. 

The  case  of  Norton  vs.  Hooker  coming  up  for  argument,  MAE- 
SHALL  M.  STRONG,  for  plaintiff  in  error,  said: 

By  the  agreement  of  the  parties,  the  payment  of  the  note  was 
a  condition  precedent  to  the  performance  of  Norton's  contract. 
Until  the  note  was  p~iid,  Hooker  could  not  require  performance 
from  Norton.  Chitty  on  Bills,  87.  American  Liw  Library,  33. 
At  most,  the  agreements  were  independent  of  each  other,  and  were 
the  subjects  of  separate  actions,  and  not  of  set-off  against  each 
other. 

Partial  failure  of  consideration  cannot  be  set  up  in  defence  in 
an  action  upon  a  promisory  note.  This  is  the  universal  rule  of 
law  in  England,  and  wherever  it  has  been  departed  from-  in  the 
United  States,  it  has  been  under  particular  statutory  provisions: 
Reed  vs.  McAllister,  8  Wendell,  109.  Bailey  on  Bills,  534  to 
544.  Chitty  on  Bills,  8.  5  Cowen's  Rep.  494.  1  Littell's  Rep. 


REPORTS.  39 

233.    5  do.  249.     Harrison's  Digest,   524.     Chitty  on  Bills, 
88,  89. 

The  express  promise  of  Rooker  to  pay  the  note  in  the  hands  of 
Sn  assignee,  precluded  him  from  afterwards  setting  in  defence 
any  want  or  failure  of  consideration.  This  promise  amounted  to 
a  legal  admission  of  the  sufficiency  of  the  consideration,  and  estop- 
ed  him  from  the  defence  that  has  been  made  in  the  case.  2  Cow- 
en's  Treatise,  740.  Bigelow's  Digest,  705. 

In  the  court  below,  the  defence  set  up  under  Norton's  contract, 
Was  not  in  mitigation  of  damages,  but  was  under  a  noiice  of  set- 
off,  claiming  unliquidated  damages.  The  principle  that  unliqui- 
dated damages  cannot  be  set  off,  is  too  well  settled  to  need  argu- 
ment. 8  Wendell,  109.  Stat.  of  Wisconsin,  278.  Again,  the 
notice  of  special  matter  is  bad.  The  rule  in  New  York  to  test 
the  sufficiency  of  a  notice  of  this  kind,  is  to  see  if  it  would  be  good 
on  general  demurrer  if  it  were  embodied  in  the  form  of  a  special 
plea.  10  John.  Rep.  140.  If  the  notice  in  this  case  is  tested  by 
this  rule,  it  cannot  be  sustained. 

The  contract  proven  before  the  referees,  was  materially  differ- 
ent from  that  slated  in  the  notice.  The  defendant  below  ought 
to  have  been  confined  in  his  proof  to  the  matters  stated  in  his  no- 
tice. 10  John.  Rep.  140.  Cowen's  Treatise,  557,  553.  1  Cow- 
en's  Philips,  207,  209.  2  do.  509. 

TOWSLEE,  for  deft  in  error: 

The  decision  of  ihe  court  upon  the  questions  now  under  con- 
sideration, was  altogether  proper  under  the  circumstances  of  the 
case.  The  facts  have  not  been  correctly  stated  in  argument.  The 
proof  shows  that  instead  of  the  payment  of  the  note  being  a  condi- 
tion precedent  to  Norton's  performance,  Norton  was  to  perform 
his  contract  six  months  before  the  note  became  due,  and  that  his 
performance  was  a  condition  precedent  to  the  payment. 

Although  as  a  general  principle,  unliquidated  damages  cannot 
be  set-off,  yet  where  the  damages  arise  from  the  non-performance 
of  a  condition  precedent  in  a  contract  that  entered  into  the  con- 
sideration of  the  defendant's  promise,  they  may  be  brought  in  and 
allowed. 

Under  the  revised  statutes  of  New  York,  which  the  counsel  for 
the  plaintiff  in  error  admits,  in  this  respect,  to  be  in  affirmance  of 
the  common  law,  partial  failure  of  consideration  rnay  be  given  in' 
evidence  upon  the  trial  to  reduce  the  plaintiff's  recovery.     1  Cow- 


40  REPORTS. 

en's  Treatise,  174.  The  defence  in  this  case  was  not  insisted 
upon  on  the  trial  as  a  set-off,  but  as  a  partial  failure  of  considera- 
tion, and  as  such  was  properly  allowed.  1  Cowen's  Treatise  174, 
176.  Cowen  &  Hill's  notes  to  Phil.  Ev.  1475. 

The  notice  of  special  matter  need  not  be  as  particular  as  a  spe- 
cial plea.  The  notice  in  this  case  was  understood  by  the  plain- 
tiff, and  accepted  as  sufficient;  no  objection  was  made  to  it  at  the 
trial,  and  it  is  too  late  now  to  except  to  its  sufficiency. 

MOSES  M.  STRONG,  in  continuation: 

All  the  objections  taken  by  the  plaintiff  in  error  are  based  upon 
the  supposition  of  a  certain  state  of  facts.  The  record  only  shows 
that  the  referees  state  that  particular  witnesses  testified  to  certain 
facts.  This  is  not  showing  to  the  court  that  the  facts  existed,  nor 
did  it  authorize  the  district  court  to  decide  that  they  did  exist. 

WELLS,  in  conclusion: 

The  case  resolves  itself  into  two  points :  1st.  can  the  defendant 
set  up  a  partial  failure  of  consideration  in  defence?  and  2d.  can 
he  avail  himself  of  it  by  way  of  set-off?  In  this  case  the  claim  of 
the  defendant  was  for  unliquidated  damages,  which  cannot  be  set- 
off.  The  authority  read  from  Cowen,  is  only  the  dictum  of  the 
compiler,  and  that  does  not  support  the  position  assumed.  The 
question  is,  did  the  District  Court  err?  or  did  the  referees  eir? 
The  referees  reported  a  sum  certain  in  favor  of  the  plaintiff,-  but 
if  the  law  should  allow  the  unliquidated  damages  to  be  set-off, 
then,  according  to  their  supplemental  report,  a  certain  sum  should 
be  deducted  from  the  plaintiff's  demand.  The  court  allowed  the 
set-off,  and  we  think  it  erred  in  doing  so.  It  ought  to  have  ren- 
dered judgment  on  the  absolute  report,  and  rejected  the  supple- 
ment and  set-off.  Lawrence  vs.  Niles,  10  John.  Rep.  141. 

Judge  IUVIN  delivered  the  following  opinion  of  the  court  in 
both  cases: 

JOSEPH  ROOKER  vs.  NELSON  R.  NORTON. 

This  cause  came  up  on  error  to  the  judgment  of  the  Dislrict 
Court  of  Racine  county  given  at  the  November  term  of  said  court 
for  1841. 

The  action  was  assumpsit  instituted  by  Nelson  R.  Norton,  the 
defendant  in  error,  against  Joseph  Rooker,  the  plaintiff  in  error, 
upon  a  promissory  note,  to  be  discharged  by  a  payment  in  shoes 
*and  boots,  and  an  account,  and  declared  on  with  the  usual 
counts  in  that  form  of  action;  to  which  the  defendant  inter- 


REPORTS.  41 

posed  a  plea  of  the  general  issue,  with  a  notice  of  set-off  and  spe- 
cial matter  to  be  given  in  evidence. 

In  the  progress  of  this  cause,  it  appears  that  the  court  referred  it 
to  referees,  in  pursuance  of  the  authority  contained  in  the  84th 
section  of  "  an  act  concerning  proceedings  in  courts  of  record," 
(Statutes  of  Wisconsin,  page  209,)  by  which  it  is  provided  that 
"  whenever  it  shall  appear  probable  in  any  cause  depending  in  any 
District  Court,  that  the  trial  of  the  same  may  require  the  exami- 
nation of  a  long  account  on  either  side,  the  said  court,  at  any  time 
after  issue  joined,  in  such  case,  may  refer  such  case,  by  rule  of 
court,  to  referees,  who  shall  be  three  such  persons  as  the  parties 
rnay  agree  upon,  and  if  they  shall  not  agree  the  said  court  shall 
nominate  them,  which  referees  shall  hear  and  examine  the  mat- 
ters in  controversy,  and  report  thereon,"  &c.,  and  upon  which  re- 
ference report  was  afterwards  made  and  accepted  by  the  court, 
and  judgment  given  thereon. 

It  further  appears,  that  the  plaintiff  in  error  objected  to  the  re- 
ference of  the  cause,  on  the  ground  that  he  had  aright  to  trial  by 
jury,  but  which  objection  was  overruled;  and  it  further  appears 
that  the  defendant  objected  to  the  acceptance  of  the  report  of  the 
referees  for  reasons  stated  in  his  bill  of  exceptions,  the  substance 
of  which  is  embodied  in  his  assignment  of  errors  in  this  court, 
which  is  as  follows: 

"  1.  The  court  erred  in  referring  this  cause  to  referees,  against 
the  consent  of  the  plaintiff  in  error,  the  action  being  a  common 
law  action. 

2.  The  courl  erred  in  ruling  that  it  was  not  necessary  for  the 
referees  in  this  cause  to  report  the  facts  as  found  by  them  in  the 
trial  of  the  cause. 

3.  The  court  erred  in  ruling  that  it  was  not  necessary  for  the 
referees  to  make  a  repoit  of  what  they  had  allowed  of  the  plain- 
tiff's claim  or  disallowed,  or  what  the  referees  had  allowed  or  dis- 
allowed of  the  claim  of  off-set  of  the  defendant  below. 

4.  For  that  the  court  erred  in  ruling  that  the  referees  had  de- 
cided properly  in  finding  that  false  representations,  as  proved,  did 
not  avoid  the  note  in  suit. 

5.  The  court  erred  in  ruling  that  the  report  of  the  referees 
be  accepted,  and  entering  judgment  thereon." 

The  first  error  assigned  is  upon  the  construction  of  the  7th  ar- 
ticle of  the  amendments  to  the  constitution  of  the  United  States, 

6 


42  REPORTS. 

which  is,  that "  in  suits  at  common  law,  where  the  value  in  contro* 
versy  shall  exceed  twenty  dollars,  the  right  of  trial  by  jury  shall 
be  preserved,"  &c.,  it  being  contended  by  the  counsel  for  the 
plaintiff  in  error,  that  the  law  of  the  Territory  before  referred  to, 
is  in  violation  ofHhis  portion  of  the  constitution. 

To  justify  a  court  in  declaring  a  law  of  the  legislature  unconsti- 
tutional, the  case  mugt  be  clear  and  manifest.  12  Sergt.  & 
Ra\vle,330.  3  Sergt.  &.  Rawle,  109.  Is  this  such  a  case?  If 
we  be  permitted  to  take  the  uncontradicted  action  of  the  different 
states  on  this  subject  indulged  in,  in  some  instances,  foi  a  quar- 
ter of  a  century,  as  an  answer  to  this  question,  we  should  say  that 
it  is  not;  for,  in  some  shape  or  other,  has  the  practice  of  referring 
suits  to  referees  existed  in  some  of  the  states,  perhaps,  ever  since 
the  adoption  of  the  federal  constitution,  and  in  states,  too,  where 
similar  provisions  are  found  in  the  state  constitution. 

In  the  state  of  New  York,  where  the  provisions  of  the  law,  in 
this  respect,  are  similar  to  those  of  our  statute,  the  practice  has 
existed  for  upwards  of  thirty  years.  In  Pennsylvania  it  has  exist- 
ed, in  even  a  stranger  form,  for  many  years,  under  a  clause  in  the 
state  constitution,  similar  to  that  of  the  United  States  constitution 
in  relation  to  trial  by  jury;  and  so  free  from  constitutional  objec- 
tion is  the  subject  there  considered,  that  the  court  refused  to  con- 
sume time  in  hearing  the  question  argued.  6  Sergt.  &  Rawle, 
240.  1  Binney,  416. 

That  a  reference  of  a  cause  to  referees  to  hear  and  examine 
and  report  thereon,  is  not  a  trial  by  jury  in  the  usual  acceptation  of 
the  term  jury,  may  not,  perhaps,  be  doubted;  nor  is  it  a  violation 
of  the  constitution  of  United  States  to  have  a  jury  differing  from 
that  known  at  the  common  law,  which  was  composed  of  the  num- 
ber of  twelve,  as,  perhaps  for  different  purposes,  as  the  legislature 
might  think  best,  they  have,  (and  unquestioned  as  to  constitution- 
ality,) been  composed  of  numbers  varying  from  six  to  twelve. 

The  principal  object  of  the  institution  of  trial  by  jury,  seems  to 
have  been  to  give  to  persons  whose  rights  are  to  be  inquired  into, 
the  right  to  be  tried  by  their  peers .  If  that  be  true,  then  are  those 
rights  less  secure  when  tried  by  peers,  not,  it  is  true,  called  jurors, 
but  referees,  who  are  as  solemnly  sworn  as  jurors?  We  cannot 
imagine  that  they  are.  But  however  differently  the  mind  may 
speculate  upon  this  subject,  we  cannot  see  that  this  is  such  a  clear 
case  of  unconstitutionality  as  to  justify  a  reversal  of  the  decision 


REPORTS.  40 

of  the  District  Court  on  that  point,,  and  declare  the  law  void ;  par- 
ticularly, too,  when  we  know  that  all  the  errors  committed  by 
those  referees  may  be  as  fully  corrected  by  the  court  as  though 
the  trial  had  been  by  jury  before  that  court. 

Under  the  second  error  assigned,  it  was  contended,  that  as  the 
referees.had  reported  to  the  court  all  the  evidence  in  the  case,  as 
well  as  their  conclusions  from  it,  they  exceeded  their  powers, 
(deeming  them  to  be  to  report  the  facts  and  not  the  testimony,)  and 
for  that  reason  the  defendant  below  objected  to  the  acceptance  of 
their  report.  How  far  this  objection  is  good,  we  shall  presently 
see.  It  is  true, that  had  the  referees  made  "report  of  what  they 
allowed  of  plaintiff's  claim,  or  disallowed;  or  what  they  allowed 
or  disallowed  of  the  claim  of  off-set  of  the  defendant  below,"  as 
assigned  in  the  third  assignment  of  error,  and  here  noticed  in  con- 
nection with  the  second,  it  might  have  been  a  source  of  further 
satisfaction  to  the  parties;  but  had  they  stopped  with  such  a  re- 
port, they  would  have  left  undone  a  much  more  important  thing, 
that  is,  left  the  court  without  the  fullest  means  of  ascertaining 
whether  error  and  injustice  had  found  their  way  into  the  proceed- 
ings; and,  as  there  is  nothing  in  the  law  which  requires  a  report 
of  the  facts  alone,  we  do  not  see  that  there  was  error  in  the  report 
which  reported  to  the  court  the  testimony  as  well  as  the  sum  as- 
certained by  them  to  be  due  from  the  defendant  to  the  plaintiff; 
and  that  they  were  bound  to  find  the  sum  due,  is  evident  from  the 
law  itself,  which  is,  "  and  if  the  report  of  the  referees  or  a  major- 
ity of  them,  shall  be  confirmed  by  the  court,  and  any  sum  be 
thereby  found  for  (he  plaintiff,  judgment  shall  be  entered  for  the 
same  with  costs,"  &,c.  We  cannot  therefore  see  that  there  was 
error  in  the  decision  of  the  court  in  these  particulars. 

The  fourth  error  assigned,  and  which,  upon  an  examination  of 
the  evidence,  we  cannot  sustain,  very  conclusively  shows  that 
there  was  no  impropriety  in  that  part  of  the  report  of  the  referees 
which  puts  the  court  in  possession  of  all  the  testimony. 

Finding  no  objection  thus  far  to  the  decision  of  the  court  be- 
low, and  seeing  nothing  in  the  fifth  assignment  of  error  beyond 
mailers  already  noticed,  we  affirm  the  judgment  of  the  District 
Court,  with  the  costs  of  this  case;  but  as  it  appears  that  both  plain- 
tiff and  defendant  were  dissatisfied  with  the  judgment  of  the  Dis- 
trict Court,  as  both  are  here  or.  separate  writs  of  error,  and  both 
now  before  the  court,  we  will  now  consider  the  errors  as  assigned. 


44  REPORTS. 

NELSON  R.  NORTON,  v».  JOSEPH  ROOKER. 

It  appears,  as  has  been  already  stated,  that  the  suit  was  brought 
on  a  note  payable  in  boots  and  shoes,  and  in  part  consideration  of 
an  improvement  on  public  lands  which  was  sold  by  plaintiff  to  de» 
fendant,  and  as  a  part  of  the  contract,  plaintiff  was  to  dig  and  com- 
plete  a  cellar,  to  finish  a  woodshed,  granery  and  barn,  previous 
to  the  lime  of  payment  of  the  note.  The  time  fordoing  the  work 
and  making  payment  of  the  note  was  afterwards,  by  agreement  of 
the  parties,  extended.  With  defendant's  plea  of  general  issue, 
he  gave  notice  that  he  would  offer  in  evidence  that  the  note  was 
given  without  any  consideration;  that  he  claimed  as  a  set-off  a 
large  sum  of  money,  to  wit:  the  sum  of  one  thousand  dollars,  for 
plaintiff's  failing  to  fulfil  a  verbal  contract  to  finish  certain  build- 
ings situate  on  defendant's  farm,  in  Burlington,  and  for  failing  to 
build  a  cellar  under  the  house  situate  on  defendant's  farm.  In 
the  account  filed  by  defendant  in  set-off,  is  contained  the  items: 
Damages  for  not  finishing  barn  according  to  contract,  8100;  dam- 
ages for  not  finishing  wood-house  according  to  contract,  $100; 
for  failing  to  stone  up  my  cellar,  and  finish  the  same,  to  my  dam- 
age $250.  Although  the  notice  is  very  inartificially  drawn,  we 
cannot  say,  that  it  is  so  imperfect  as  to  have  justified  the  referees 
in  excluding  the  evidence. 

When  it  is  remembered  that  this  very  matter  is  part  of  the  con- 
sideration of  the  note,  and  for  which  it  was  brought  into  existence, 
we  think  that  it  was  sufficient  to  notify  the  plaintiff  of  the  defence 
intended  to  be  setup  by  defendant.  This  notice,  though  not  re- 
quired to  be,  in  the  strict  technical  form,  a  plea,  (8  John.  Rep. 
455,)  must,  nevertheless,  contain  all  the  facts  necessary  to  be 
stated  in  a  special  plea;  13  John.  Rep.  475;  10  John.  Rep.  142; 
and  8  Wendell,  590.  It  must  also  state  truly  the  facts  intended 
to  be  given  in  evidence,  14  John.  Rep.  89.  Where  notice  was 
in  general  terms,  that  the  defendant  would  prove  that  there  were 
divers  judgments,  at  the  time  of  the  sale  of  the  land,  outstanding 
against  the  plaintiff,  which  were  a  lien  on  the  land,  and  which  the 
defendant  was  obliged  to  pay,  and  did  pay,  in  order  to  prevent  a 
sale  of  the  premises,  without  specifying  any  particular  judgment, 
Chancellor  Kent,  in  20  John.  Rep.  746,  says,  it  would  be  unrea* 
sonable  and  unjust,  that  the  plaintiff  at  the  trial  should  shut  out 
the  defence  under  the  pretence  dial  the  defendant  did  not  tell 
him  in  the  notice  all  the  particulars  of  these  judgments,  when  they 


REPORTS.  45 

must  have  been  matters  of  record,  and  the  defendant  stood  ready 
to  prove  the  judgments  by  the  record,  and  to  produce  the  execu- 
tion thereon,  and  prove  the  payment  of  them.  On  the  same  prin- 
ciple, in  this  case,  the  note  in  question,  and  the  matters  in  de- 
fence, relate  to  the  same  transaction  between  the  parties,  and  the 
plaintiff  must  have  known  it  sufficiently  without  its  being  formally 
stated  \i}  the  notice. 

The  referees  made  a  report  in  favor  of  the  plaintiff,  but  reduced, 
by  special  report,  under  conditions  of  law,  the  plaintiff's  claim,  on 
proof  of  facts  referred  to  in  the  notice,  and  on  which  the  court 
rendered  judgment,  after  objection  on  part  of  the  plaintiff,  that 
partial  failure  of  consideration  could  not  be  given  in  evidence  and 
entertained,  which  is  the  question  now  to  be  considered.  On  this 
point,  there  are  conflicting  opinions,  but  under  the  more  recent 
and  present  practice  of  the  courts,  with  a  view  to  prevent  circuity 
of  action,  it  is  generally  allowed.  In  the  Supreme  Court  of  the 
United  States,  it  is  decided  in  some  cases  not  to  be  a  defence, 
which  are  collected  in  a  note  in  2  Peter's  Cond.  Rep.  218;  but 
on  examination,  these  decisions  were,  probably,  mostly  made  on 
the  general  issue.  In  2  Wheaton's  Rep.  13,  it  is  decided  by  the 
court  not  to  be  a  defence  under  the  general  issue.  So  this  court 
decides.  To  give  evidence  of  a  partial  failure  of  consideration,  a 
notice  must  accompany  the  plea  of  general  issue.  6  Binney,  198. 

1  Sergt.  &  Rawle,  477.     8  Sergt.  &  Rawle,  178.     8  Cowen,  31. 

2  Wendell,  431.     12  Wendell,  246.      3  Wendell,  236.     4  Wen- 
dell,483.     Graham's  Practice,  23 1,232.     7  Cowen,  322.    3  M'- 
Cord,  169.     1  Cowen's  Treatise,  174.     Bailey  on  Bills,  Boston 
Ed.  of  1826,  p.  340,  in  notes.     3  Kent's  Com.  78,  79, 80. 

It  is  true,  that  unliquidated  damages  cannot  he  off-set,  but  this 
is  evidence  of  matters  in  diminution  of  the  plaintiff's  demand, 
arising  out  of  the  same  transaction,  and  not  technically  an  off-set, 
although  defendant  called  it  so  in  his  notice:  yet  this  is  mere 
matter  of  form,  and  not  of  substance,  and  does  not  vitiate  the  no- 
tice, and  particularly  does  it  not  vitiate  in  this  form  of  action, 
which  is  in  its  nature  equitable. 

The  third  error  assigned,  that  the  defendant  having  once  pro- 
mised to  pay  the  note  in  die  hands  of  an  assignee,  was  ever  after 
barred  from  setting  up  a  want  or  failure  of  consideration,  does  not 
appear  to  have  much  in  it.  This  nete  was  not  negotiable,  and 
it  does  not  appear  that  the  suit  was  for  the  use  of  a  third  person, 


46  REPORTS, 

but  on  the  contrary,  all  off-sets  and  accounts  between  the  parties 
seem  to  have  been  gone  into.  There  is  nothing  appearing  on  the 
record  but  that  the  plaintiff  was  the  actual  and  legal  owner  of  the 
note  at  the  time  of  the  suit.  The  evidence  affords  sufficient  ex- 
planation of  (he  circumstances  to  settle  ihe  ownership  of  the  note 
in  the  plaintiff.  We  are  therefore,  in  this  branch  of  the  case,  con- 
strained to;iffirrn  the  judgment  of  the  District  Court,  with  costs. 

II.  B.  TOWSLEE  and  MOSES  M.  STROXG,  for  Rooker. 

MARSHALL  M.  STRONG  and  H.  N.  WELLS,  for  Norton. 


EX JAMES  G.  KLNG.       \  Error  <°  Roek 

Is  proceedings  under  the  statute  for  partition  of  veal  estate,  the  petiHon- 
er  may  brine:  a  writ  of  error  to  reverse  the  judgment ;  and  if  the  proceed- 
ings arc  erroneous,  the  judgment  will  be  reversed,  that  the  errors  may  be 
corrected, 

James  G.  King  filed  his  petition  in  the  Rock  District  Court, 
praying  for  the  partition  of  certain  lands  lying  in  Rock  county. 
The  commissioners  appointed  by  the  court,  made  partition  of 
lands  which  did  not  correspond  with  the  petition,  and  some  of 
which  was  not  embraced  in  it;  and  the  division  was  not  made  ac- 
cording to  law  or  the  respective  interests  of  the  parties.  The 
mistake  was  not  discovered,  either  by  the  court  or  counsel,  during 
the  term,  and  the  report  of  the  commissioners  was  confirmed  and 
judgment  entered  accordingly.  King,  the  petitioner,  brought  this 
writ  of  error  to  reverse  the  judgment,  in  order  to  have  the  pro- 
ceedings perfected  in  the  court  below. 

WIIITOX,  for  King,  briefly  stated  the  case,  and  showed  that  the 
errors  had  arisen  purely  through  mistake;  that  there  was  no  oppo- 
sition lo  the  petition,  and  that  it  was  for  the  benefit  of  all  persons 
interested  to  reverse  Hie  judgment, that  the  District  Court  may  be 
enabled  to  make  partition  of  the  premises  described  in  the  peti- 
tion, according  to  law. 


REPORTS.  47 

Chief  Justice  DUNN  delivered  the  following  opinion  of  the  court : 

In  this  case  the  petitioner,  James  G.  King,  filed  his  petition  for 
the  partition  of  certain  real  estate  situate  in  the  county  of  Rock, 
in  the  District  Court  of  Rock  county,  at  October  term  of  said 
court,  A.  D.  1841.  At  said  term  commissioners  were  appointed 
to  make  partition  of  the  land  described  in  said  petition.  At  the 
April  term  of  said  court,  1842,  the  said  commissioners  made  their 
report  to  the  said  court,  in  which  they  gave  the  same  quartet  sec- 
tion of  land  to  two  persons  entire,  and  not  by  moiety,  and  one 
quarter  section  to  the  petitioner  which  was  not  described  in  his 
petition.  The  District  Court  rendered  judgment,  that  partition 
be  made  of  the  premises  according  to  said  report. 

It  is  unnecessary  to  perplex  this  question  with  reasons,  as  it  is 
obvious  that  the  report  was  defective  and  erroneous,  and  conse- 
quently the  judgment  of  the  court  thoreonj  which  must  have  aris- 
en from  the  usual  hurry  of  business  at  the  close  of  a  protracted 
term  of  court,  when  the  same  strict  and  minute  examination  of 
lengthy  reports  is  not  made,  as  when  there  is  more  time  and  less 
press  of  business. 

The  judgment  of  the  District  Court  is  therefore  reversed,  and 
the  case  remanded  to  the  said  District  Court,  for  such  furtl'er  pro- 
ceedings therein  as  may  be  legal  and  proper. 

WHITON,  for  King. 


48  REPORTS. 


JOHN  GARDNER  &  ~\ 

ISAAC  Z.  WHITAKER,  plP/t  in  error,  \ 

vt.  }•  Error  ly  Grant  county , 

The  BOARD  OB'  COMMISSIONERS  of  the  coun-  | 
ty  of  GRANT,  de/Hs  in  error.  J 

As  a  general  principle,  after  a  court  has  adjourned  for  the  term,  it  has 
no  power  to  amend  or  correct  the  record  of  the  term.  If  the  record  is  er- 
roneous, it  can  only  be  corrected  by  writ  of  error. 

The  statute  of  amendments  does  not  extend  to  the  correction  of  errors 
in  thejudgment  after  the  adjournment  of  the  term  p.t  which  the  judgment 
was  rendered. 

At  the  March  term,  1840,  of  the  Grant  District  Court,  Gardner, 
one  of  the  plaintiffs  in  error,  was  convicted  of  an  assault  with  in- 
tent to  kill,  and  was  sentenced  by  the  court  to  pay  a  line  and  the 
costs  of  prosecution.  By  an  arrangement  with  the  District  At- 
torney, he,  together  with  Whitaker,  the  other  plaintiff  in  error, 
came  into  court  and  confessed  judgment  in  favor  of  the  county 
commissioners,  in  an  action  of  assurnpsit,  for  the  amount  of  the 
fine  and  costs,  upon  which  judgment  execution  was  stayed  for  a 
specified  time  by  agreement  of  the  parties.  At.  the  September 
term,  1841,  of  said  District  Court,  the  plaintiffs  in  error  made  a 
motion  to  amend  the  record  of  the  judgment  by  confession,  by  in- 
serting therein  the  consideration  and  reasons  for  the  confession. 
The  District  Court  overruled  the  motion,  to  which  decision  ex- 
ceptions were  taken,  and  the  facts  sought  to  be  placed  upon  the 
record  by  the  amendment  asked  for,  were  made  a  part  of  the  bill 
of  exceptions.  This  writ  of  error  is  biought  to  reverse  the  judg- 
ment by  confession. 

The  following  assignment  of  errors  was  made  in  the  record 
from  the  court  below. 

"  1.  The  court  erred  in  overruling  the  motion  to  amend  the  re- 
cord: 

2.  The  District  Court  erred  in  rendering  the  judgment  which 
this  writ  of  error  is  brought  to  reverse: 

First.  Because  the  only  consideration  of  the  judgment  was  the 
compounding  of  a  felony,  for  which  there  had  been  a  conviction 
and  sentence. 

Second.  The  judgment  is  not  authorized  by  law. 


REPORTS.  49 

Third.  The  judgment  is  against  good  policy. 

Fourth.  The  judgment  is  without  consideration  and  void." 

MOSES  M.  STRONG,  for  plaintiffs  in  error: — 'This  case  is  not  like 
any  to  be  found  in  the  books.  It  must  depend  upon  the  applica- 
tion which  the  court  will  make  of  the  general  principles  of  law  to 
the  facts.  We  contend  that  the  District  Court  erred  in  permit- 
ting the  record  of  the  judgment  of  confession  to  b«  made.  If  we 
are  correct  in  this  position,  it  will  hardly  be  necessary  to  notice 
the  other  errors  assigned.  It  is  a  well  established  principle  of 
law,  that  all  contracts  and  agreements  entered  into  for  the  pur- 
pose of  compounding  a  penal  act,  are  against  public  policy,  and 
void;  4  Black.  Com.  133,  136;  The  People  vs.  Bishop,  5  Wen- 
dell, 111.  Gardner  had  been  convicted  of  a  felony,  and  had  been 
sentenced  by  the  court.  The  judgment  by  confession,  although 
not  compounding  the  felony,  was  similar  in  its  principles  and 
worse  in  its  consequences;  it  was  compounding  the  sentence  of 
the  court.  The  pardoning  power  is  vested  by  law  in.  the  Govern- 
or alone.  After  sentence,  he  only  can  relieve  the  convict.  Nei- 
ther the  District  Attorney,  nor  the  County  Commissioners,  have 
any  thing  to  do  with  the  matter,  and  their  attempting  to  relieve 
him  from  punishment  by  taking  a  security  for  the  penalty,  has  no 
authority  of  law  to  sanction  it.  If  a  bond  be  given  which  is  against 
the  policy  of  the  law,  it  may  be  avoided.  A  judgment  confessed, 
as  in  this  case,  that  is  not  only  without  any  lawful  consideration, 
but  against  policy,  ought  for  the  same  reason  to  be  set  aside. 

It  will  probably  be  insisted,  that  this  court  cannot  look  beyond 
the  record  of  the  judgment,  or  inquire  into  the  facts  upon  which  it 
was  rendered.  If  such  should  be  the  opinion  of  the  court,  there 
is  an  end  of  the  case.  But  the  facts  are  made  a  part  of  the  re- 
cord by  the  bill  of  exceptions,  and  I  put  the  question  to  this  court; 
if  the  case  were  now  here  as  an  original  proceeding  upon  the 
same  slate  of  facts,  would  such  a  judgmeat  be  allowed  to  be  en- 
tered? If  the  court  is  not  prepared  to  answer  affirmatively,  then 
the  judgment  must  be  r.eversed. 

DUNN,  for  def 'ts  in  error: 

The  judgment  by  confession  estops  the  plaintiffs  from  alledging 
ought  against  it,  or  reversing  it  on  error.  The  only  remedy 
against  such  a  judgment  is  by  bill  in  chancery,  showing  fraud  or 
mistake  in  procuring  it;  a-nd  these  are  the  only  grounds  upon 
which  even  equity  can  afford  relief.  When  a  judgment  is  confes- 

7 


50  REPORTS. 

sed,  there  is  an  end  of  the  matter  so  far  as  the  courts  of  law  are 
concerned. 

BURNETT,  for  same  parties: 

If  this  court  can  go  back  behind  the  judgment,  and  inquire  into 
the  legality  of  the  consideration,  (a  principle  that  is  not  admitted,) 
the  record  does  not  sustain  the  position  that  has  been  assumed. 
It  does  not  appear  that  Gardner  was  committed  until  the  fine  and 
costs  should  be  paid,  as  a  part  of  his  punishment.  The  District 
Attorney  may  have  chosen  to  take  a  capias  pro  fine  against  him, 
and  the  court  may  have  very  properly  awarded  it.  In  many  cases 
this  would  be  the  better  course  for  the  public  and  the  public  offi- 
cers, where  a  pecuniary  fine  is  all  fhe  penalty  inflicted",  as  in  this 
case.  Suppose  him  in  custody  under  a  capias  for  the  sum  impo- 
sed; any  person  may  become  his  security  for  it  upon  time,  if  ac- 
ceptable to  the  authorities  entitled  to  receive  it.  By  such  an  ar- 
rangement the  fine  itself  becomes  discharged,  and  that  is  a  suffi- 
cient consideration  for  any  undertaking  by  him  and  his  securities 
to  pay  the  money  at  a  future  day;  and  this  is  no  compounding  of 
felony.  But  the  court  cannot  go  into  an  examination  of  these 
matters.  As  has  been  correctly  stated,  by  confessing  judgment, 
the  plaintiffs  are  estopped  from  alledging  errors  in  the  judgment; 
the  confession  amounts  in  law  to  a  release  of  errors;  and  it  would 
be  without  precedent  or  reason,  to  reverse  a  judgment  because 
the  consideration  upon  which  it  was  rendered  is  not  spread  upon 
the  record. 

We  contend  further;  that  the  District  Court  had  no  power  to 
amend  the  record  at  the  time  when  the  motion  was  made,  and 
that  to  have  done  so  would  have  been  error.  Tiie  motion  was 
made  at  the  third  term  after  the  confession  of  judgment.  The 
record  was  then  out  of  the  power  and  control  of  the  court,  so  far 
as  the  form  and  effects  of  previous  judgments  are  concerned. 
During  the  term,  the  record  of  all  the  proceedings  of  the  term  is 
entirely  under  the  control  of  the  court  for  amendments  and  cor- 
rections. For  such  purposes,  the  law  considers  the  whole  term 
as  but  of  one  day.  But  after  the  final  adjournment,  this  power  is 
at  an  end,  and  the  court  can  never  go  back  to  previous  terms  and 
amend  and  alter  the  record  of  its  judgments.  There  would  be  no 
stability  in  records  if  this  were  the  case.  The  statute  of  amend- 
ments, broad  as  it  is,  does  not  authorize  the  amendment  sought 
by  the  motion. 


REPORTS.  51 

Opinion  of  the  Court,  by  Judge  IRVIN. 

This  cause  came  into  this  court  on  a  bill  of  exceptions  taken  to 
the  decision  of  ihe  District  Court  of  Grant  county  at  the  Septem- 
ber term  for  1841 . 

Upon  an  examination  of  the  transcript  of  the  record,  it  appears 
that  at  the  March  term  of  said  court  for  1840,  the  said  Gardner 
and  Whiiaker  appeared  in  court,  and  entered  a  judgment  by 
confession,  in  an  action  of  assumpsit,  in  favor  of  said  Board  of 
Commissioners,  for  two  hundred  and  thirty-two  dollars  and  the 
costs  of  suit;  and  at  the  said  September  term  of  said  court,  they 
filed  a  motion,  for  reasons  therein  stated,  to  amend  the  record  of 
said  judgment  by  inserting.therein  the  true  consideration  of  the 
judgment,  which  motion  was  overruled,  and  exceptions  thereto 
taken. 

The  only  point  that  presents  itself  for  consideration  in  this  court 
is,  did  the  court  err  in  overruling  the  motion?  It  is  a  principle, 
too  well  established  now  to  be  questioned,  that  generally, after  the 
adjournment  of  the  court  for  the  term,  its  record  can  never  after- 
wards be  touched  by  that  court;  and  if  error  has  found  its  way  in- 
to the  proceedings,  it  must  be  corrected  by  another  and  a  higher 
court.  To  this  general  principle  there  are  some  few  exceptions, 
and  they  are  mostly  of  statutory  provisions.  One  of  the  exceptions 
is,  the  proceeding  by  writ  of  error  coram  nobis.  This  is  a  pro- 
ceeding which  lies  in  the  same  court  where  the  cause  is  tried; 
whereas  the  writ  to  correct  errors  in  the  judgment  of  that  court, 
cannot  be  brought  before  the  same  court,  but  its  object  is  to  re- 
move the  cause  to  a  higher  court.  For  it  would  be  absurd  to  ap- 
peal to  tho  same  court  from  an  error  of  its  own  judgment.  But  as 
the  writ  of  error  coram  nobis  does  not  question  the  judgment  of 
the  court,  but  only  alledges  some  defect  in  the  execution  of  the 
process,  or  some  clerical  misprison  or  mistake,  or  some  error  in 
the  proceedings  arising  from  a  fact  not  appearing  on  the  face  of 
them,  (as  when  a  judgment  is  rendered  against  a  party  after  his 
death,)  there  is  no  absurdity  in  permitting  it  to  be  brought  before 
the  same  court  that  tried  the  cause.  Thus,  if  the  court  enters  up 
a  judgment  as  confirmed  against  the  appearance  bail,  whereas  in 
truth  and  in  fact  he  had  filed  a  recognizance  of  special  bail,  and 
had  set  the  oflice  judgment  aside,  which,  however,  the  clerk  omit- 
ted to  enter  in  the  record,  this  writ  of  error  coram  nobis,  (some- 
times called  a  writ  of  error  in  fact,)  lies  to  correct  the  proceedure, 


5!s  REPORTS. 

and  upon  the  fact  appearing,  the  court  proceeds  to  reverse  the 
judrnent  against  the  appearance  bail  up  to  the  point  where  the  er- 
ror was  committed,  and  placing  the  cause  in  the  state  in  which  it 
would  have  been,  had  the  fact  been  properly  entered  on  the  record, 
sends  it  back  for  further  proceedings.  2  Wash.  130 ;  2  Rand.  174. 
The  provisions  of  our  statute  of  amendments  do  not  extend  to  such 
a  case  as  is  made  by  the  motion  under  consideration.  Believing 
that  the  District  Court  had  no  authority  to  interfere  with  the  judg- 
ment of  a  previous  term,  in  the  manner  asked  for  by  the  motion, 
we  affirm,  with  costs,  the  decision  overruling  the  motion. 

MOSES  M.  STRONG,  for  pl'tfT  in  error. 

DUNN  and  BURNETT,  for  def'ts  in  error. 


THOMAS  AGAN &  1 

OWEN  M'LAUGQLIN,^'^s  in  error, 

rs.  J-  Error  to  Grant  county. 

The  BOARD  OF  COMMISSIONERS  of  the     | 
county  of  GRANT,  defts  in  error.  J 

This  case  embraced  the  same  questions  of  law,  and  depended 
upon  the  same  state  of  facts  as  the  above  case,  in  every  particular, 
except  the  names  of  the  plaintiffs.  It  was  submitted  upon  the  ar- 
gument in  the  foregoing  case.  The  decision  of  the  court  below 
was  affirmed  according  to  the  above  opinion,  without  any  separate 
opinion  being  delivered  in  it. 


REPORTS.  53 


DANIEL  I\l.  PARKISON.ptyT  in  error,) 

vs.  >  Error  to  Iowa  county. 

RICHARD  McKIM,  deft  in  error,          \ 

WHEN  a  party  to  a  suit  has  been  notified  under  the  statute,  to  appear  and 
be  examined  as  a  witness  on  the  trial  and  appears  according  to  the  notice, 
and  is  willing  to  be  sworn  and  examined,  he  may  be  examined  as  a  witness 
in  the  cause,  whether  the  party  who  gave  the  notice  wishes  it  or  not,  and 
although  he  may  object  to  his  being  examined  at  the  trial. 

In  an  action  by  the  indorsee  against  the  indorser,  where  the  plaintiff  de- 
clares upon  a  negotiable  promissory  note  in  the  common  form,  with  the 
usual  averments  of  presentation,  non-payment  and  notice,  a.  note  nnder 
seal,  indorsed  by  the  payee  to  the  plaintiff,  does  not  support  the  declara- 
tion, and  cannot  be  read  in  evidence  to  The  jury. 

A  note  under  seal,  although  it  may  be  made  payable  to  order,  is  not  ne- 
gotiable, nnd  the  indorsee  of  such  a  note  cannot  maintain  an  action  upon 
it  in  his  own  name,  against  eiiher  the  maker  or  indorser. 

The  indorsement  of  a  note  under  seal  is  not  a  legal  transfer  of  the  in- 
strument, nor  does  it  make  the  indorser  liable  to  the  holder,  or  authorize 
him  to  insert  any  guarantee  of  payment  over  the  indorser's  name;  it  is 
nothing  move  than  an  order  or  authority  to  the  holder  to  -receive  the  money 
from  the  maker. 

In  actions  between  indorsee  and  indorser  of  negotiable  promissory  notes, 
the  questions  as  to  tbe  sufficiency  of  the  notice  and  what  shall  constitute 
due  diligence,  where  the  facts  are  ascertained,  are  questions  of  law,  and 
cannot  be  submitted  to  the  jury. 

McKim  brought  an  action  of  assumpsit  against  Parkison  in  the 
Iowa  District  Court.  The  declaration  contained  the  usual  com- 
mon counts,  count  on  an  account  stated  and  a  special  count  upon 
the  following  promissory  uote  under  seal,  and  the  indorsement 
thereon: 

"On  or  before  the  first  day  of  June  next,  I  promise  to  pay  D. 
M.  Parkison  or  order,  the  sum  of  two  hundred  dollars,  for  value 
received.  Witness  my  hand  and  seal  this  17th  day  of  February, 
1840.  (Signed)  JOSEPH  CALDWELL,  [Seal]" 

"Pay  the  within  to  Richard  McKim, 

(Signed)  D.  M.  PARKISON." 

Upon  the  trial  of  the  cause,  the  plaintiff  below  offered  the  note 
and  indorsement  in  evidence  to  the  jury,  which  was  objected  to 
by  the  defendant,  but  the  court  overruled  the  objection,  and  the 
note  was  read.  It  was  proven  that  the  note  was  presented  to  the 
maker  at  maturity  and  payment  demanded,  and  that  notice  of  non- 
payment was  given  to  Parkison  the  indorser,  but  the  precise  time 
of  giving  the  notice  could  not  be  fixed ;  it  was  not,  however,  stated 


54  REPORTS. 

by  any  of  the  evidence,  to  have  been  given  within  less  than  four 
days  after  demand  and  refusal  of  payment.  It  also  appeared  in 
the  evidence  that  Parkison  lived  within  eight  miles  of  Mineral 
Point  where  payment  was  demanded  of  the  maker. 

Previous  to  the  trial,  Parkison  had  given  notice  under  the  stat- 
ute, that  he  wished  to  have  McKim  sworn  and  examined  as  a 
witness.  McKim  attended  under  the  notice  and  was  willing  to 
be  sworn,  but  at  the  trial  the  counsel  for  Parkison  declined  calling 
upon  him.  He  then  gave  notice  to  Parkison's  counsel  to  have 
him  (Parkison)  sworn  as  a  witness,  and  upon  Parkison  being  called 
and  not  appearing,  lie  insisted  upon  being  sworn  and  examined 
himself,  which  the  court  allowed  to  be  done,  and  to  which  the  de- 
fendant's counsel  excepted. 

After  the  evidence,  the  defendant's  counsel  requested  the 
Court  to  instruct  the  jury:  "That  if  the  jury  find  that  the  maker 
of  the  note  lived  at  Mineral  Point  at  the  time  when  the  note  be- 
came due,  and  that  the  indorser  lived  within  eight  miles  of  there, 
that  a  notice  of  non-payment  given  to  the  indorser  four  days  or 
more  after  the  non-payment  would  not  be  reasonable  notice." — 
The  Court  declined  giving  the  instruction  in  the  form  in  which 
it  was  asked,  but  instructed  the  jury:  "That  in  case  of  non-pay- 
ment by  the  maker  on  the  day  of  payment,  the  plaintiff  could  not 
recover  unless  he  proved  that  he  gave  notice  of  the  non-payment 
to  the  indorser  as  soon  as,  considering  the  situation  of  the  par- 
ties, lie  reasonably  could;  but  that  the  jury  must  be  the  judges 
from  the  circuinstances-of  the  case  as  proved,  whether  or  not  the 
notice  was  reasonable." 

The  jury  returned  a  verdictin  favor  of  the  plaintiff  for  the  amount 
of  the  note  and  interest,  upon  which  the  court  rendered  judg- 
ment. 

Parkison  sued  out  a  writ  of  error  to  reverse  the  judgment  of  the 
District  Court,  and  assigned  the  following  errors  in  the  proceed- 
ings below: 

"1st.  The  court  below  erred  in  permitting  the  plaintiff  below 
to  be  sworn  as  a  witness. 

2d.  The  court  erred  in  permitting  the  note  to  be  read  in  sup- 
port of  the  declaration. 

3d.  The  court  erred  in  refusing  to  instruct  the  jury  as  request- 
ed by  the  counsel  for  the  defendant  below,  and  in  giving  the  in- 
structions which  it  did.'' 


REPORTS.  55 

MOSES  M.  STRONG  for  pl'ff  in  error: 

The  first  error  depends  upon  the  sufficiency  of  the  notice  given 
to  the  defendant  below  to  be  sworn  as  a  witness.  The  I;uv  only 
authorizes  the  parly  giving  the  notice  to  be  sworn  himself,  in  case 
the  piirty  notified  fails  to  attend  or  refuses  to  be  examined,  and 
when,  the  notice  has  been  reasonable.  In  ihis  case,  the  defend- 
ant was  not  present  at  the  trial,  and  the  notice  was  given  to  his 
counsel  during  its  progress.  It  will  not  be  insisted  by  any  one, 
that,  as  a  general  principle,  this  notice  was  sufficient.  The  no- 
tice previously  given  to  the  plaintiff',  certainly  did  not  authorize 
him  to  force  himself  as  a  witness  in  the  cause  against  the  will  of 
the  defendant. 

The  second  error  brings  us  to  Ihe  consideration  of  the  note  up- 
on which  the  action  is  brought.  It  is  an  instrument  under  seal, 
and  as  such  is  not  negotiable.  The  ordinary  indorsement  does 
not  authorize  the  indorsee  to  maintain  an  action  upon  it  in  his 
Own  name,  either  against  the  maker  or  indorser.  The  actioo  of 
assumpsi.t  can  only  be  maintained  on  simple  contracts,  and  a  seal- 
ed instrument  cannot  be  introduced  to  support  any  declaration  in 
that  form  of  action. 

Upon  the  third  assignment  of  errors,  we  contend,  that  if  the 
court  it  asked  to  give  a  principle  of  law,  applicable  to  the  case, 
in  charge  to  the  jury,  and  refuses  to  do  so,  it  is  error.  The  court 
was  asked  to  instruct  the  jury,  that  if  a  certain  state  of  facts  ex- 
isted, the  notice  was  not  reasonable.  This  instruction  the  court 
refused  to  give;  but  on  the  contrary,  charged  the  jury  that  they 
must  judge  whether  the  notice  was  reasonable  or  not  from  the 
circumstances  of  the  case.  In  both  the  refusal  and  the  charge 
given,  the  court  erred.  Tiie  authorities  upon  the  su'oject  fully 
establish  the  principle,  that  when  the  facts  are  ascertained,  whe- 
ther the  notice  is  reasonable  or  not,  is  a  question  of  law  for  the 
court,  and  not  one  of  fact  for  the  jury.  They  also  establish  the 
point,  that  upon  the  facts  in  this  case,  the  notice  was  not  reason- 
able. Chitty  on  Bills,  509,  510,  (notes  and  authorities  there  re- 
ferred to.)  Byles  on  Bills,  151).  Law  Library,  no.  42.  Tindell 
and  others,vs.  Brown,  1  T.  R.  168.  Darbyshire  vs.  Parker,  6 
East.  3,  note.  Lenox  vs.  Roberts,  4  Peters'  Con.  Rep.  1G4,  and 
note.  Bank  of  Columbia  vs.  Lawrence,  1  Peters,  581.  Bush 
vs.  Swan,9  Peters,  45.  Dickens  vs.  Bull,  10  Peters,  581 . 

DUNN  for  deft  in  error: 


56  REPORTS. 

As  to  the  sufficiency  of  the  notice  to  the  indorser,  and  whether 
the  question  is  one  of  law  or  of  fact,  the  authorities  are  conflicting. 
The  best  guide  which  this  court  can  have  on  that  point,  is  its  own 
decision  in  the  case  of  Johnson  vs.  Wilson^s  udmr.,  made  at  the 
July  term,  1840.  The  more  reasonable  rule  is,  to  judge  of  the 
sufficiency  of  the  notice  by  the  circumstances  of  each  case. — 
Chitty  on  bills,  51 1 ;  id.  518,  note  o. ;  Taylor  vs.  Brcdcn,  8  John. 
Rep.  172. 

The  objection  which  has  been  raised  to  the  note  sued  on  is  not 
well  founded.  The  note  has  no  legal  seal  to  it,  and  the  indorse- 
ment has  nothing  purporting  to  be  a  seal.  There  are  common 
counts  in  the  declaration,  and  the  finding  of  the  jury  may  have 
been  under  some  of  them,  as  there  was  evidence  in  support  of 
them,  and  a  positive  promise  to  pay  was  proven. 

STRONG,  in  conclusion: 

The  case  of  Johnson  vs.  Wilson^s  admr.  is  not  of  binding  autho- 
rity in  this  case,  because  there,  there  was  evidence  of  in  relation  to 
agreement  between  the  parties,  which  the  court  said  must  govern 
the  case.  The  note  read  from  Chitty  on  bills,  518,  does  not  support 
the  principle  that  has  been  contended  for.  The  case  of  Taylor 
vs.  Breden,  in  8  John,  Rep.  cited  by  the  counsel  for  the  defendant, 
was  brought  on  a  judgment  rendered  in  the  State  of  Maryland, 
and  the  question  of  notice  in  that  case  was  not  decided  by  the 
court  in  New  York. 

The  legislature  of  this  Territory  has  made  any  device  used  by 
way  of  a  seal,  a  sufficient  seal,  (Stat.  Wis.  158.)  This  effectual- 
ly establishes  the  character  of  the  instrument  sued  on.  It  is  no 
answer  to  the  argument  to  say,  ihat  there  were  common  counts 
in  the  declaration,  and  that  there  was  other  evidence  than  the 
note  before  the  jury.  The  note  itself  does  not  support  any  of 
the  counts,  and  if  the  court  below  committed  material  error  in 
its  decision,  the  judgment  must  be  reversed,  and  it  matters  not 
how  many  legal  decisions  were  made,  or  how  much  legitimate 
testimony  was  given  in  the  progress  of  the  cause. 

Opinion  of  the  Court,  by  Judge  MILLER. 

This  was  an  action  of  assumpsit  brought  in  the  District  Court  for 
the  county  of  Iowa,  by  defendant  in  error  against  plaintiff  in  error. 

In  the  tenth  section  of  the  act  entitled  '  an  act  supplemental  to 
the  act  concerning  testimony  and  depositions,  approved  Februa- 
ry 19lh,  1811,  it  is  provided,  that  in  all  actions,  or  proceedings  at 


REPORTS.  57 

law  in  civil  cases,  either  party  may  give  notice  to  the  adverse  par- 
ty, that  he  wishes  to  have  said  party  sworn  as  a  witness  in  such 
case;  and  if  said  adverse  party  shall  not  appear  at  the  time  of  trial, 
or  shall  refuse  to  be  sworn  or  to  testify,  or  shall  fail  tu  take  and 
produce  his  deposition  as  therein  after  provided,  then  the  party 
giving  such  notice,  if  the  notice  shall  be  deemed  by  the  court 
sufficient,  may  himself  be  sworn  as  a  witness  in  such  cause.  The 
defendant  gave  the  plaintiff  notice  to  appear  in  court  at  the  trial 
of  the  cause,  and  testify.  The  plaintiff  did  so  appear,  and  was 
willing  to  give  evidence  as  a  witness  in  the  cause,  when  the  coun- 
sel of  defendant  declined  having  him  sworn.  The  plaintiff  then 
gave  notice  to  defendant's  counsel  at  the  bar,  and  during  the  pro- 
gress of  the  trial,  that  he  desired  to  have  him,  the  defendant,  tes- 
tify in  the  cause,  when  the  defendant  was  called,  and  making  no 
answer,  the  court  admitted  the  plaintiff  to  be  sworn  and  testify  as 
a  witness.  This  is  the  first  error  assigned. 

This  is  a  peculiar  and  novel  statute,  but  the  court  must  give  to 
it  its  proper  effect.  The  party  is  notified  to  appear  to  be  sworn  as 
a  witness,  and  he  must  either  be  present  and  consent  to  be  sworn 
and  testify  as  a  witness,  or  produce  his  deposition;  and  in  default 
thereof,  the  party  giving  the  notice  will  be  admitted  as  a  witness. 
We  are  disposed  to  consider  the  notified  party  in  the  same  light 
as  any  other  witness  subpenaed  in  the  cause.  If  a  witness  is 
subpenaed  by  one  party  and  not  called,  the  other  party  can  call 
him.  When  a  deposition  is  taken  and  filed,  it  becomes  the  prop- 
erty of  both  parties,  and  can  be  used  by  either  party,  on  comply- 
ing with  the  rules  of  the  court.  8  Sergt.  &  Rawle,  580.  If  the 
party  shall  produce  his  deposition,  taken  and  executed  according 
to  the  provisions  of  the  statute  and  the  rules  of  court,  it  can  bo 
read  on  either  side  in  evidence.  If  the  party  notified  shall  ap- 
pear in  court  at  the  trial,  in  pursuance  of  notice,  and  is  willing  to 
give  evidence  as  a  witness,  he  may  be  sworn,  whether  the  party 
who  notified  him  calls  him  to  the  stand  or  not.  It  is  not  necessa- 
ry for  him  even  to  call  upon  the  opposite  party,  as  was  done  in  this 
case.  In  this  there  was  no  error. 

The  plaintiff,  as  indorsee  of  a  promissory  negotiable  note,  de- 
clared against  defendant  as  indorser.  The  declaration  set  forth  a 
promissory  note  and  the  indorsement  thereof  to  the  plaintiff  by 
defendant,  before  due,  with  the  usual  averments  of  demand  of 
payment  and  notice  of  non-payment.  The  paper  offered  in  evi- 

8 


58  REPORTS. 

dence,  was  a  note  under  seal;  to  the  reading  of  which  the  defen- 
dant's counsel  objected,  which  objection  was  overruled  and  the 
testimony  admitted.  In  this  the  District  Court  committed  an  er- 
ror. It  was  not  proper  evidence  in  support  of  the  declaration. — 
The  variance  between  the  note  set  forth  in  the  declaration  and 
the  note  offered  in  evidence,  is  very  apparent. 

The  court  charged  the  jury,  thatincr.se  of  non-payment  by 
the  maker  on  the  day  of  payment,  the  plaintiff  could  not  recover, 
unless  he  proved  that  he  gave  notice  of  the  nOn-payrnent  to  the 
indorser,  as  soon  as,  considering  the  situation  of  the  parties,  he 
reasonably  could,  but  that  the  jury  must  be  judges,  from  the  cir- 
cumstances of  the  case,  as  proved,  whether  the  notice  was  reason- 
able. In  this  charge,  it  is  considered  that  the  District  Court 
erred. 

This  note,  being  a  note  under  seal,  was  not  nf?gotiab!e;  2  Bin- 
ney,154;  1  Dallas,  208.  The  seal  stripped  it  of  its  negotiability, 
according  to  the  principles  of  the  law  merchant;  and  consequently 
the  indorsement  by  the  defendant,  did  not  vest  irk  the  plaintiff  a 
legal  right  to  sue  in  his  own  name.  If,  then,  the  plaintiff  iias  no 
legal  right  by  virtue  of  the  indorsement,  to  sue  the  maker  in  his 
own  name,  by  what  right  can  he  sue  the  indorser?  The  indorse- 
ment by  defendant  was  not  a  legal  transfer  of  ihe  note;  it  was  no 
assignment,  but  merely  an  order  or  authority  to  the  plaintiff  to  re- 
ceive the  amount  of  it  from  the  maker.  It  never  can  be  consistent 
•with  the  intent  of  the  parties,  or  with  the  law,  that  every  man 
who  puts  his  name  on  a  bond  is  to  be  considered  as  a  new  drawer 
of  the  bond;  and  if  we  stop  short  of  that  conclusion,  the  plaintiff 
cannot  recover.  The  law  is  decided  to  be,  that  the  mere  indor- 
ser of  a  bond  or  a  sealed  instrument,  is  not  liable  in  law  to  the  in- 
dorsee ;  1  Bay's  South  Carolina  Reports,  400;  Folwell  vs.  Beavcn, 
13  Sergt.  &  Rawle.  311.  Nor  does  such  indorsement  authorize 
the  holder  to  insert  any  guarantee  of  payment  over  the  indorser's 
name.  Nor  will  the  indorser  be  liable  on  an  allegation  of  a  pro- 
mise, unless  it  be  clear  and  explicit,  and  clearly  established  by  tes- 
timony. 

In  cases  arising  upon  the  indorsement  of  negotiable  paper,  the 
questions  as  to  the  sufficiency  of  the  notice,  and  what  shall  con- 
stitute due  diligence,  when  the  facts  are  ascertained  and  determi- 
ned, are  of  raw,  and  cannot  be  submitted  to  the  jury.  On  this 
point  there  is  a  conflict  in  the  decisions,  but  the  weight  of  author- 


REPORTS.  50 

ity  is  in  favor  of  the  principle  here  stated.  In  England  the  rule 
is  settled  in  this  way.  It  is  so  settled  by  the  Supreme  Court  of 
the  United  Stntes,  which  is  the  rule  of  decision  for  this  court. — 
Chittyon  bills,  509,  510,  514,  515,  516;  1T.R.  168;  GEast.3; 
Bank  of  Columbia  vs.  Lawrence,  1  Peters,  581 ;  Lenox  vs.  Rob- 
erts, 4  Peters'  Cond.  Rep.  164;  Bush  vs.  Swan,  9  Peters,  45; 
Dickens  vs.  Bull,  10  Peters,  581. 

The  case  of  Johnson  vs.  Wilson,  decided  at  the  term  of  1840, 
of  this  court,  was  ruled,  exclusively,  on  the  agreement  of  the  par- 
ties, on  the  subject  of  demand  and  notice. 

Judgment  reversed. 

MOSES  M.  STRONG,  for  pl'tffin  error. 

F.  J.  DUNN,  for  deft  in  error. 


HENRY  MERRILL, pP/in  error,) 

vs.  >  Error  to  Dane  county. 

GIDEON  LOW,  deft  in  error,         } 

WHERE  an  affidavit  stated  the  cause  for  issuing  a  writ  of  attachment  to 
be,  that  the  plaintiff  had  good  reason  to  believe,  and  did  believe,  that  the  de- 
fendant was  about  fraudulently  to  remove  his  properly,  convey  or  dispose  of  the 
same  so  as  to  hinder  and  delay,  &c.,  it  is  not  sufficient  to  authorize  the  writ 
of  attachment ;  and  where  a  writ  has  issued,  founded  upon  such  an  affida- 
Tit,  it  should  be  quashed  on  motion.  The  word  fraudulently,  qualifies  the 
word  remove  only  ;  and  (he  words  hinder  and  delay,  refer  to  the  words  con- 
veyor dispose;  and  an  affidavit  thus  worded,  does  not  present  any  sufficient 
cause  for  issuing  a  writ  of  attachment. 

•The  affidavit  should  be  so  direct,  positive  and  certain  as  to  be  free  from 
question  or  doubt. 

Where  the  officer  certifies  that  he  is  satisfied  that  the  facts  and  allega- 
tions set  forth  in  the  affidavit  are  true,  and  that  the  affiant  is  entitled  to  a 
writ  of  attachment,  it  is  a  sufficient  indorsement  of  satisfaction. 

A  writ  of  attachment  which  commands  the  sheriff,  that  the  propertj 
"so  attached  in  your  hands  to  secure,  or  so  to  provide,  that  the  same  may 
be  liable  to  further  proceedings  thereupon  at  a  term  of  that  District  Court, 
to  be  holden,"  &c.,  "so  as  to  compel  the  defendant  to  appear  and  answer 
the  complaint  of  the  plaintiff,  when  and  where  you  shall  make  known  to 
the  said  court  how  you  have  executed  this  writ;"  is  made  returnable  with- 
in the  meaning  and  intention  of  the  law. 

Merrill  sued  out  of  the  Dane  District  Court,  a  writ  of  attach- 


60  REPORTS. 

merit  against  Low,  dated  30th  July,  1841,  founded  upon  the  fol- 
lowing affidavit: 

"Henry  Merrill  being  duly  sworn  doth  depose  and  say,  that 
Gideon  Low,  of  Fort  Winnebago,  is  justly  indebted  to  this  depon- 
ent in  about  the  sum  of  sixteen  hundred  dollars  lawful  money, 
over  and  above  all  legal  off-sets,  and  that  he  has  good  reason  to 
believe,  nnd  does  believe,  that  said  Low  is  about  fraudulently  to 
remove  his  properly,  convey  or  dispose  of  the  same,  so  as  to  hin- 
der and  delay  this  deponent,  and  further  saith  not." 

Upon  which  affidavit  was  the  following  indorsement  of  satisfao 
tion  by  the  officer  before  whom  it  was  made: 

'•I  hereby  certify,  that  I  am  fully  satisfied  that  the  facts  and  al- 
legations set  forlh  in  the  above  affidavit,  are  true,  and  that  the 
said  affiant  is  justly  entitled  to  his  writ  of  attachment}"  and  signed 
by  the  Supreme  Court  Commissioner. 

The  writ  of  attachment  which  issued,  after  the  attaching  part, 
went  en  to  command  the  sheriff",  that  the  property  "so  attached 
in  your  hands  to  secure,  or  so  to  provide,  thai  the  same  may  be 
liable  to  further  proceedings  thereupon  at  a  term  of  that  District 
Court  to  be  holden  at  Madison  on  the  second  Monday  after  the 
fourth  Monday  in  October  next,  so  as  to  compel  the  said  Gideon 
Low  to  appear  and  answer  the  complaint  of  the  said  Henry  Mer- 
rill, when  and  where  you  shall  make  known  to  the  said  court  how 
you  have  executed  this  writ." 

Notice  of  the  attachment  was  published,  and  at  the  return  terra, 
the  defendant  moved  the  court  to  quash  the  writ  upon  the  follow- 
ing grounds: 

"1.  Because  the  affidavit  of  the  said  plaintiff  filed  with  the 
clerk  of  said  court  in  the  above  entitled  cause,  is  insufficient,  for 
the  reason,  that  the  said  affiant  does  not  swear  to  the  existence 
of  any  particular  fact  which  authorizes  the  issuing  of  a  writ  of  at- 
tachment. 

2.  Because  the  said  affidavit  is  uncertain. 

3.  Because  the  certificate  of  Wm.  N.  Seymour,  as  supremo 
court  commissioner,  upon  the  said  affidavit,  is  insufficient,  for  the 
reason,  that  it  does  not  appear  that  the  said  Wm.  N.  Seymour  was 
satisfied  of  the  existence  of  any  particular  fact  which  authorizes 
the  issue  of  a  writ  of  attachment. 

4.  Because  the  said  writ  of  attachment  is  not  made  returnable 
according  to  law." 


REPORTS.  61 

Upon  this  motion,  the  District  Court  quashed  the  wfit  and  dis- 
missed the  suit. 

To  reverse  this  judgment,  Merrill  has  prosecuted  this  writ  of 
error;  and  the  question  presented  for  the  determination  of  this 
Court,  is;  did  the  District  Court  eit  in  sustaining  the  motion,  of 
the  defendant? 

BOTKIN  for  pl'fl'  in  error: 

There  is  but  one  error  relied  upon  in  this  case,  and  that  is,  that 
the  District  Court  erred  in  quashing  the  writ  upon  the  alledged 
insufficiency  of  the  affidavit.  The  affidavil  is  not  in  the  disjunc- 
tive, as  was  insisted  in  the  court  below,  according  to  the  decision 
of  this  court  in  the  case  of  Morrison  vs.  Fake.  One  of  the  caus- 
es for  issuing  the  writ,  is  stated  in  the  veiy  words  of  the  law,  and 
the  portion  of  the  affidavit  that  is  objected  to,  may  be  rejected  as 
surplusage. 

CLARK  for  deft  in  error: 

The  principal  argument  to  reverse  thejudgment  of  the  District 
Court  is,  that  the  affidavit  follows  the  very  language  of  the  statute. 
This  is  not  true  in  point  of  fact;  but  if  it  was,  it  does  not  follow 
of  course  that  it  is  legally  certain.  If  an  affidavit  should  embrace 
all  the  grounds  for  the  writ,  couched  in  the  very  words  of  the  sta- 
tute, no  one  would  contend  that  it  would  be  sufficient.  If  any  one 
of  the  facts  exists,  it  is  enough,  and  the  affidavit  must  state  dis- 
tinctly wliAt  the  fact  is.  Nothing  should  be  left  in  doubt  as  to  its 
true  meaning. 

WHITOJX,  in  continuation: 

The  affidavit  does  not  state  any  distinct  ground  for  the  writ.  It 
is  confused  and  uncertain.  It  charges  that  the  defendant  is  about 
fraudulently  to  remove  his  property,  but  it  does  not  state  for  what 
purpose  or  to  what  effect:  Also,  that  he  is  about  to  convey  or  dis» 
pose  of  the  same  so  as  to  hinder  and  delay  the  plaintiff,  but  the 
fraudulent  intent  is  not  coupled  wilh  this  allegation.  The  act 
about  to  be  done,  and  the  fraudulent  intention  of  the  defendant 
in  doing  it,  should  be  so  distinctly  stated  and  so  coupled  together, 
that  there  could  be  no  doubt  in  ascertaining  the  specific  fact 
charged. 

The  Supreme  Court  Commissioner  does  not  certify  that  he  is 
satisfied  that  any  particular  fact  exists,  but  only  that  the  affidavit 
is  true.  The  affidavit  only  states  the  belief  of  the  party,  and  the 
certificate  amounts  to  nothing  more  than  that  the  officer  is  satis- 


62  REPORTS. 

fied  that  the  plaintiff  believes  as  he  has  staled  in  his  affidavit. — 
The  'officer  ought  to  be  satisfied  of  facts,  and  not  of  mere  belief, 
and  his  certificate  that  he  is  satisfied  of  the  truth  of  the  affidavit, 
in  general  terms,  is  not  sufficient. 

The  statute  requires  all  writs  to  be  made  returnable  on  the 
first  day  of  the  next  succeeding  term,  unless  the  court  shall  oth- 
erwise direct.  (Stat.  VVis.  200.)  This  writ  is  not  made  return- 
able at  all.  The  Sheriff  is  not  commanded  to  return  the  writ. 
At  most,  it  is  returnable  to  the  term  generally,  and  not  on  the 
first  day  of  the  term,  as  the  statute  requires.  For  this  cause  alone 
it  is  bad  and  should  be  quashed. 

Opinion  of  the  Court,  by  Chief  Justice  DUNN: 

This  suit  was  originally  commenced  in  the  District  Court  of 
Dane  County,  by  attachment  issued  on  an  affidavit  of  facts  as 
cause  for  issuing  the  writ,  with  an  indorsement  of  satisfaction 
thereon  by  a  proper  officer.  In  the  court  below,  the  defendant 
moved  to  quash  the  writ  and  dismiss  the  proceedings  for  these 
reasons,  viz: 

"  1.  Because  the  affidavit  of  said  plaintiff,  filed  with  the  clerk 
of  said  court  in  this  cause,  is  insufficient  in  this,  that  it  does  not 
state  the  existence  of  any  particular  fact  which  authorizes  the  is- 
suing of  a  writ  of  attachment. 

2.  Because  the  affidavit  is  uncertain. 

3.  Because  the  certificate  of  William  N.Seymour,  as  Supreme 
Court  Commissioner,    upon  the  affidavit,   is  insufficient,  for  the 
reason  that  it  does  not  appear  that  the  said  Seymour  was  satisfied 
of  the  existence  of  any  particular  fact  which  authorizes  the  issu- 
ing of  a  writ  of  attachment. 

4.  Because  the  said  writ  of  attachment  is  not  made  returnable 
according  to  law:" 

Which  motion  was  sustained  by  the  court  below,  and  the  writ 
was  quashed  and  the  proceedings  dismissed.  To  reverse  this  de- 
cision a  writ  of  error  is  prosecuted  in  this  court. 

The  inquiry  arises  here,  was  there  error  in  the  decision  of  the 
court  below,  in  sustaining  (he  motion  to  quash  for  the  reasons  as- 
signed? This  brings  us  to  the  consideration  of  the  reasons  in  the 
order  in  which  they  are  presented.  The  first  and  second  reasons 
urge  the  insufficiency  and  uncertainty  of  ihe  affidavit.  In  Mor- 
rison against  Fake,  this  court  classed  the  cases  in  which  attach- 
ment is  authorized  to  issue,  by  the  act  concerning  the  writ  of  at- 


REPORTS.  63 

tachment,  page  165,  Revised  Statutes,  into  six  classes.  The  6th 
is,  "that  such  debtor  is  about  fraudulently  to  remove,  convey,  or 
dispose  of  his  property  or  effects,  so  as  to  hinder  and  delay  his 
creditor:"  And  the  court  said:  "  We  find  it  to  be  practiced  in  the 
Territory,  to  set  out  this  cause  in  the  disjunctive,  as  set  out  here, 
and  we  are  not  disposed  to  change  it.  We  are  not  disposed  to 
confine  the  party  to  the  use  of  one  of  the  words,  remove,  convey, 
or  dispose,  but  he  mny  use  one  or  all  at  his  pleasure;  also,  the 
words  properly,  or  effects.  In  a  case  of  fraud  it  may  de  difficult 
to  obtain  satisfactory  information  whether  a  man  is  removing  or 
disposing  of  his  property.  Clearly,  the  party  cannot  set  out  two 
causes  of  attachment  in  the  disjunctive.  Both  these  points  seem 
to  be  settled  in  3  Watts'  Reports,  144." 

The  proceeeding  by  attachment  being  a  departure  from  the 
common  law,  and  a  violent  remedy,  the  court  in  that  case  went 
as  far  in  favor  of  the  proceeding  by  attachment,  as  could  be  re- 
conciled to  any  adjudications  on  the  subject  in  former  cases,  and 
they  cannot  go  beyond  the  rule  there  laid  down.  If  the  affidavit 
in  this  case  conformed  to  that  rule,  it  would  be  sustained  by  the 
court;  but  upon  examination,  insufficiency  and  uncertainly  are 
imposing  on  the  face  of  the  affidavit,  in  respect  to  the  rule  refer- 
red to.  The  affidavit  is  in  these  words:  "  Has  good  reason  to  be- 
lieve and  does  believe,  that  the  said  Low  is  about  fraudulently  to 
remove  his  properly,  convey  or  dispose  of  the  same,  so  as  to  hin- 
der or  delay  this  deponent."  It  is  uncertain  and  therefore  insuffi- 
cient in  this,  that  according  to  the  acknowledged  rules  of  gram- 
matical construction,  the  adverb,  fraudulently,  qualifies  the  word 
remote  only,  and  not  the  words  convey  or  dispose;  and  the  words 
"  so  as  to  hinder  or  delay  this  deponent,"  refer  to  the  words  "  con- 
vey or  dispose,"  as  their  antecedent,  and  not  to  the  words  "frau- 
dulently remove;'1''  thus  presenting  no  sufficient  and  certain  cause 
for  issuing  the  attachment.  For  it  will  not  be  insisted  on  that  the 
words  "  about  fraudulently  to  remove  his  property,"  without  the 
qualifying  words,  "  so  as  to  hinder  or  delay  this  deponent,"  would 
be  a  sufficient  ground  upon  which  to  award  the  writ  of  attachment. 
Nor  that  the  words  "  convey  or  dispose  of  his  property  so  as  to 
hinder  or  delay  this  deponent,"  without  the  qualifying  word, "  frau- 
dulently," prefixed,  would  be  a  sufficient  ground  for  the  same 
purpose.  The  affidavit  in  this  respect  should  be  so  direct,  positive, 
a  nd  certain,  that  upon  a  public  prosecution  on  the  same  charge, 


64  REPORTS. 

supported  by  proof,  the  defendant  could  be  convicted.  There 
may  be,  and  doubtless  are  different  opinions,  about  the  construc- 
tion of  the  meaning  of  that  part  of  the  affidavit  quoted;  but  this 
is  an  argument  against  its  certainty  and  sufficiency.  It  should  be 
entirely  free  from  any  question  or  doubt. 

We  are  decidedly  of  opinion  that  the  District  Court  did  not  err 
in  entertaining  the  motion,  quashing  the  writ  and  dismissing  the 
proceedings  on  these  grounds. 

The  third  and  fourth  reasons  in  support  of  the  motion  to  quash, 
object  to  the  sufficiency  of  the  certificate  of  William  X.  Seymour, 
Supreme  Court  Commissioner,  indorsing  satisfaction  on  the  affi- 
davit j  and  that  the  writ  of  attachment  is  not  made  returnable  ac- 
cording to  law. 

The  court  is  not  called  on  to  consider  the  merits  of  these  ob- 
jections. As  the  motion  must  have  been  decided  by  the  District 
Court  mainly  on  the  first  and  second  grounds  assumed  in  support 
of  the  motion.  We  have,  however,  examined  the  objections,  and 
are  of  opinion,  that  the  indorsement  of  satisfaction  of  itself,  is 
sufficient.  The  satisfaction  is  of  fact,  and  not  of  the  legal  suffi- 
ciency of  the  affidavit.  We  are  also  of  opinion  that  the  writ,  al- 
though not  in  the  usual  form,  is  made  returnable  within  the  mean- 
ing and  intention  of  the  law. 

Judgment  affirmed  with  costs. 

BOTKIX,  for  pl'tff  in  error. 

WHITON  and  CLARK,  for  deft  in  error. 


REPORTS.  65 


WILLIAM  S.  BROWN, pVffin error,        } 

vs.  >  Error  to  Rock  county. 

GEORGE  W.  BICKNELL,  deft  in  error,} 

A  PLEA  of  the  statute  of  limitations,  is  a  pica  to  the  remedy ;  it  is  a  mere 
municipal  regulation,  formed  upon  local  policy;  and  a  foreign  statute  can- 
not he  pleaded  in  our  courts. 

Where  the  debtor  is  out  of  the  Territory  at  the  time  when  the  cause  of 
action  accrues,  the  suit  may,  according  to  the  21th  section  of  the  statute 
of  limitations,  be  commenced  here  within  the  time  limited,  at  any  time  af- 
ter he  comes  into  the  Territory. 

Where  the  maker  of  a  promissory  rote  resided  out  of  the  Territory  atthe 
time  when  it  became  due,  and  afterwards  removed  into  the  Territory,  al- 
though the  note  has  been  due  more  than  six  yours,  it  is  not  barred  by  the 
statute  of  limitations  unless  six  years  have  elapsed  since  the  maker  came  in- 
to the  Territory  before  the  commencement  of  the  c  ction ;  but  to  prevent  the 
statute  from  running  in  such  case,  the  debtor  must  have  been  out  of  the 
Territory  when  the  cause  of  action  accrued. 

Brown  brought  an  action  of  assumpsit  against  Bickncll  in  the 
Rock  District  Court,  upon  the  following  promissory  notes  and 
drafts  drawn  in  Providence,  Rhode  Island,  viz: 

One  note  dated  15th  February,  1833,  due  at  six  months; 

One  do.    dated  21st  March,  1833,  due  at  four  months; 

One  do.    dated  18th  May,  1833,  due  at  four  months; 

One  do.   dated  21st   May,  1833,  due  at  sixty  days; 

One  do.   dated  22d  June,  1833,  due  at  sixty  days; 

A  draft  accepted  by  defendant,  dated  22d  April,  1833,  payable 
sixty  days  after  date; 

A  draft  drawn  by  defendant,  dated  7th  June,  1833,  payable  on 
presentation. 

The  action  was  commenced  in  1841.  The  defendant  pleaded 
the  general  issue,  and  gave  notice  that  the  action  was  barred  by 
the  statute  of  limitations.  From  the  bill  of  exceptions  it  appears 
that  the  notes  and  drafts  sued  on,  were  executed  at  Providence, 
in  the  State  of  Rhode  Island,  and  that  when  they  became  due,  the 
defendant  was  out  of  the  Territory.  It  also  appears  that  the  de- 
fendant came  into  the  Territory  for  the  first  time  in  July,  1837, 
about  four  years  before  the  commencement  of  the  suit.  On  the 
tri;i  1,  the  court  below  instructed  the  jury,  at  the  request  of  the  de- 
fendant, that  the  24th  section  of  the  act  in  relation  to  the  time  of 
commencing  actions,  was  not  applicable  to  the  case,  and  to  disre- 

9 


60  REPORTS 

gard  it.  Under  the  instructions  of  the  court,  the  jury  returned  z 
verdict  in  favor  of  the  defendant.  A  motion  was  made  for  a  new 
trial  and  overruled,  and  judgment  rendered  on  the  verdict. — 
Brown  sued  out1  a  writ  of  error  to  reverse  this  judgment,  and  the 
only  error  assigned  is  in  the  decision  of  the  court  in  applying  the 
statute  of  limitations  to  the  case. 

WELLS  for  pl'ffin  error: 

The  demands  upon  which  this  suit  was  brought,  had  been  due 
more  than  six  years  at  the  commencement  of  the  action,  but  when 
the  cause  of  action  accrued,  the  defendant  was  out  of  the  Terri- 
tory. He  came  into  the  Territory  for  the  first  time  in  July,  1837, 
about  four  years  before  the  suit  was  comrnenced.  In  such  case, 
the  action  is  not  barred  until  six  years  after  the  debtor  comes  into 
the  Territory.  Slat.  Wis.  261,  262,  sec.  24.  Our  statute  issim- 
i!ai  to  those  of  New  York  and  Massachusetts  upon  the  same  sub- 
ject. The  decisions  of  the  courts  of  those  States  show  conclu- 
sively, that  under  the  facts  of  this  case  the  statute  of  limitations  is 
no  bar  to  the  action.  2  Rev.  Stat.,  N.  Y.,  225.  Rev.  Slat.  Mass. 
700,  sec.  9.  Rugglcs  vs.  Keelcr,  3  John.  Rep.  203.  Byrne  rs. 
Crowninshcld,  1  Pick.  203.  Duight  vs.  Clark,  7  Mass.  Rep. 
515.  White  vs.  Bailey,  3  do.  217.  See  also  Story's  Conflict  of 
Laws,  482  to  488.  Bell  and  others  rs.  Morrison,  1  Peter?,  351. 

WHITON  for  deft  in  error: 

The  Court  is  called  upon,  to  give  a  sound  construction  'o  our 
statute  of  limitations.  But  for  the  exception  in  the  24th  section 
of  the  act,  the  action  would  be  clearly  barred,  and  there  would  be 
no  controversy  in  the  case.  The  principle  sought  to  be  establish- 
ed by  the  plaintiff  will  go  thus  far:  a  debt  may  be  contracted 
abroad  and  become  forever  barred  by  the  limitation  of  a  foreign 
State,  but  if  the  debtor  comes  into  the  Territory  at  any  remote 
period,  the  demand  may  be  revived  against  him  and  recovered.— 
We  contend  that  the  24th  section  was  intended  to  apply  to  con- 
tracts made  in  the  Territory,  or  the  contracts  made  abroad  in  re- 
ference to  the  laws  of  the  Territory  to  be  here  executed;  and  that 
this  construction  should  be  adopted  by  the  court.  The  courts  in 
modern  times,  view  statutes  of  limitations  much  more  liberally 
than  formerly,  and  they  often  regret  the  constructions  given  by  the 
old  decisions.  See  Bell  and  others  rs.  Morrison,  1  Peters,  300. 
Rt/frglfs  ?-.<?.  Kcckr,  3  John.  Rq>.  205. 

Our  statute  is  not  precisely  the  same  as  those  of  New  York  and 


REPORTS.  67 

Massachusetts,  and  this  Court  is  not  bound  by  the  decisions  in 
those  states.  The  statute  of  limitation  is  a  local  municipal  regu- 
lation, founded  upon  the  policy  of  the  state,  and  the  decisions  upon 
it  violate  no  principle  of  justice,  however  they  may  be  given. 

WELLS,  in  reply: 

The  Court  is  asked  to  give  a  construction  to  the  statute  contra- 
ry to  its  palpable  import  and  meaning.  The  Court  has  no  such 
extensive  power,  but  is  bound  to  give  it  a  sound  construction,  and 
carry  into  effect  its  obvious  meaning  and  intent.  In  doing  this, 
the  Court  will  be  aided  by  the  decisions  in  other  States  upon  the 
same  question  under  similar  statutes. 

Opinion  of  the  Court  by  Judge  MLILEE: 

The  plaintiff  in  error  brought  suit  against  the  defendant  in  er- 
ror on  a  promissory  note,  in  the  District  Court  for  the  county  of 
Rock.  The  note  was  dated  at  Providence,  Rhode  Island,  on  the 
15th  day  of  February,  1833,  and  became  due  in  six  months  there- 
after; and  it  was  made  to  appear  by  the  pleadings  and  sustained 
by  the  evidence,  that  the  defendant  came  into  the  Territory  about 
four  years  before  the  time  when  the  suit  was  brought.  It  was 
claimed  on  the  part  of  the  plaintiff,  that  under  the  twenty-fourth 
section  of  the  act  concerning  the  time  of  commencing  actions, 
which  provides,  that  if  at  the  time  when  any  cause  of  action  men- 
tioned in  the  act  shall  accrue  against  any  person,  he  shall  be  out 
of  the  Territory,  the  action  may  be  commenced  within  the  time 
therein  limited  therefor,  after  such  person  shall  come  into  tiio 
Territory,  he  was  not  barred  of  his  recovery.  It  is  very  clear,  that 
if  it  were  not  for  this  provision  in  the  statute,  this  claim  would 
have  been  barred  in  six  years. 

The  plea  of  the  statute  of  limitations,  is  a  plea  to  the  remedy; 
13  Peters,  329;  G  Wendell,  475;  4  Cowen,  528,  530;  1  Gallis, 
371;  2  Mason,  351;  14  Peters,  141.  A  statute  of  limitation  is  a 
mere  municipal  regulation,  founded  upon  local  policy;  and  a  for- 
eign statute  cannot  be  pleaded  in  our  courts:  3  John.  263;  13 
Peters,  312.  The  disability  which  entitles  a  party  to  the  benefit 
of  the  above  provision,  must  exist  when  the  right  of  action  ac- 
crues; that  is,  when  the  right  of  action  accrues,  the  debtor  must 
be  out  of  the  Territory:  5  Cowcn,  74;  14  John.  338;  9  Cowen, 
296;  5  Cowen,  231;  4  Cowcn,  508;  2  Cowen, 626;  17  John. 
511.  Under  similar  provisions  in  the  statutes  of  limitation  in 
force  in  the  states  of  New  York  and  Massachuse'ts,  the  courts  of 


68  REPORTS. 

those  states  have  decided,  that  in  cases  of  debts  accrued  against 
persons  out  of  those  states,  who  afterwards  came  into  those  states, 
the  statute  of  limitations  cannot  be  pleaded  in  bar  until  the  said 
debtors  are  in  the  said  states  for  the  term  of  six  years :  Dwight  vs. 
Clark,  7  Mass.  Rep.  515;  White  vs.  Bailey,  3  Mass.  Rep.  271; 
Byrne  vs.  Crowninshield,  18  Mass.  Rep.  263;  3  John.  Rep.  263; 
Story's  Conflict  of  Laws,  4S2  to  488;  1  Pick.  Rep.  203;  also  in 
the  case  of  Bulger  vs.  Bache,  11  Pick.  Rep.  36,  where  a  debt 
was  contracted  in  a  foreign  country,  between  subjects  thereof, 
who  remained  there  until  trie  debt  became  barred  by  the  statute 
of  limitations  of  such  country,  it  was  decided,  that  the  statute  of 
limitations  of  Massachusetts  could  not  be  pleaded  in  bar  to  an  ac- 
tion upon  the  debt,  brought  within  six  years  after  the  parties 
came  into  that  slate. 

The  judgment  of  the  District  Court  of  Rock  county,  which  was 
in  favor  of  the  defendant,  must  be  reversed. 

WELLS,  for  pl'ffin  error. 

WHITON,  for  deft  in  error. 


,i 


PHILIP  J.  TOLLE,  p ft/ in  error, 

i~i.  J-  Error  to  Grant  county. 

PENDLETON  P.  STONE,*/'*  in  error. 

UPON  an  appeal  from  the  judgment  of  a  Justice  of  the  Peace,  the  Dis- 
trict Court  cannot  inquire  into  the  qualifications  of  the  justice  who  tried 
the  cause,  and  decide  whether  he  is  legally  in  office  or  not.  The  qualifi- 
cations of  a  public  officer,  or  his  right  to  the  office,  cannot  be  examined 
and  decided  collaterally. 

Tolle  commenced  an  action  against  Stone  before  a  justice  of 
the  peace  in  Grant  county.  The  cause  was  removed,  under  the 
statute,  to  Cyrus  K.  Lord,  another  justice,  who  proceeded  to  try 
the  case,  and  who  rendered  a  judgment  in  favor  of  Tolle  for 
$42  50.  From  this  judgment  Stone  appealed  to  the  Grant  Dis- 
trict Court.  In  the  District  Court,  Stone,  by  his  counsel,  moved 
the  court  to  dismiss  the  suit,  because— 1.  Cyrus  K.  Lord,  the  jus- 


REPORTS.  69 

tice  who  tried  the  cause,  never  executed  a  bond  to  the  treasurer 
of  the  county,  as  required  by  law;  and  2d.  because,  at  and  before 
the  trial,  there  was  no  bond  or  oath  of  office  of  the  said  justice  on 
record  in  the  office  of  the  Clerk  of  the  District  Court  of  Grant 
county,  as  required  by  law. 

It  appeared  that  Lord  was  duly  commissioned  a  justice  of  the 
peace  on  the  12th  day  of  January,  1840;  he  took  and  subscribed  an 
oath  of  office  on  the  10th  of  February,  1810,  and  executed  a  bond 
according  to  the  form  of  the  statute,  which  was  signed  by  two 
sureties,  but  not  by  the  principal,  which  was  approved  by  the 
treasurer  of  the  county;  which  bond  and  oath  of  office  were  depo- 
sited with  the  clerk  of  the  District  Court,  and  marked  "  filed  12 
February,  1840,"  but  were  never  recorded  in  any  book. 

Upon  this  state  of  facts  it  was  insisted  that  Lord  was  not  a  jus- 
tice of  the  peace,  and  could  not  lawfully  entertain  jurisdiction  in 
any  cause;  and  the  court  decided,  that  not  having  complied  wilh 
the  requisitions  of  the  statute  as  to  his  qualifications,  he"  was  not 
a  legal  justice  of  the  peace,  and  dismissed  the  suit  upon  the  mo- 
tion submitted;  to  reverse  which  judgment  Tolle  has  prosecuted 
this  writ  of  error. 

The  question  presented  for  the  consideration  of  this  court  is; 
did  the  District  Court  err  in  dismissing  the  suit  upon  the  motion 
of  the  defendant. 

WIHAM  KNOWLTON,  for  pl'tfTin  error: 

The  decision  of  the  District  Court  was  erroneous  for  these  rea- 
sons: 

1.  It  was  too  late  to  take  objections  after  issue  joined  and  a 
continuance  had  been  had  before  the  justice.     Stat.  Wis.  333, 
sec.  7;  1  Brown's  Penn.  Rep.  95. 

2.  The  bond,  though  not  signed  by  the  principal,  was  sufficient 
to  bind  the  sureties,  and  was   therefore  good.     Union  Bank  of 
Maryland  vs.  Ridglcy,  \  Har.  &/  Gill,  324 ;  Andrews  vs.  Beall  et 
al.9  Cowen,693. 

3.  Though  the  bond  and  oath  of  office  were  not  recorded,  they 
were  filed  with  the  clerk,  whose  duty  it  was  to  record  them,  and 
that  was  sufficient.      Young  etals.  vs.  The  Commonwealth,  6  Bin- 
ney,88;  Althorp  vs.  North  et  als.  14  Mass.  Rep.  167. 

4.  The  authority  of  an  officer  cannot  be  inquired  into  collater- 
ally; the  officer  himself  must  be  made  a  party  to  the  pioceeding. 


70  REPORTS. 

7  Amer.  Com.  Law,  477,  478;    The  People  vs.  Adams,  9  Wen- 
dell, 404;  3  Tomlin's  Law  Dictionary,  280  to  287. 

5.  General  reputation  of  officers  is  sufficient  in  all  cases  except 
in  quo  icarranio.     Potter  vs.  Luther,  3  John.  Rep.  431;  2  Star- 
kie,21S,  732. 

6.  Lord,  although  he  never  gave  bond  according  to  law,  if  he 
accepted  the  office  and  took  the  necessary  oath,  he  was  an  officer 
de  jure,  and  he  was  only  liable  to  a  penalty.     Gilbrcath  vs.  Brown 
ct  al.  15  Mass.  Rep.  107;  7  Arner.  Corn.  Law,  144;  Mar  burn  vs. 
Madison,  1  and  2  Cranch,  49. 

7.  If  Lord  was  not  an  officer  dcjnrc,  he  was  an  officer  de  facto, 
and  his  acts  are  valid  so  far  as  the  public  and  third  persons  are 
concerned.     7  Amer.  Corn.  Law,  142;  McKinstry  vs.  Tanner, 

9  John.  Rep.  135;   The  People  vs.  Collins,  7  John.  Rep.  549;  5 
Wendell,  231 ;  1  Hill,  074;  Me  Kim  fy  Armstrong  vs.  Homers,  1 
Penrose  &.  Watts'  Pcnn.  Rep,  297;   The  United  States  vs.  Lask. 
decided  in  this  court  at  the  July  term,  1S40. 

BEVASS,  for  deft  in  error: 

The  general  principle,  that  the  qualifications  of  public  officers 
cannot  be  inquired  into  collaterally,  is  admitted.  But  this  is  not 
like  any  of  the  cases  that  have  been  cited  before  the  court.  Most 
of  those  cases  are  where  the  acts  of  ministerial  officers  have  been 
called  in  question;  many  of  them  were  suits  in  which  the  rights 
of  parties  in  some  way  depended  upon  the  official  acts  of  an  offi- 
cer, and  in  such  case  the  law  will  not  allow  the  qualifications  of 
the  officer  to  be  questioned.  If  a  sheriff",  constable,  or  coroner 
sells  property,  and  a  contest  arises  in  consequence,  as  in  the  cases 
cited  from  15  Mass.  Rep.  and  2  Aiken's  Rep.;  or  if  the  officer  is 
himself  sued  for  the  official  acts  of  himself  or  deputy,  as  in  the 
cases  cited  from  3  John.  Rep.,  3  Ohio  Rep.,  3  Amer.  Corn.  Law, 

10  Wendall,  and  other  references,  proof  of  his  qualifications  can-... 
not  be   required ;  or  in  other  words,  his  official  character  can  be 
established   by  proof  of  his  acting  in  the  capacity  claimed.     But 
this  is  a  different  case.     Here  a  man  attempts  to  exercise  judicial 
authority  in  a  subordinate  station,  and  his  acts  arc  appealed  from 
to  the  court  that  has  the  immediate  supervising  jurisdiction.     In 
the  superior  court  it  is  insisted  that  the  inferior  officer  had  no  au- 
thority to  try  the  case;  that  the  proceedings  are  coram  nonjudi- 
cc,  and  the  District  Court  is  asked  to  send  the  case  out  because 

it  did  not  come  there  from  any  lawful  authority,     lias  it  no  power 


REPORTS.  71 

lo  inquire  into  the  authority  of  those  who  pretend  to  fill  judicial 
stations?  If  it  has  not,  a  maa  without  even  a  commission,  may 
usurp  the  office  of  justice  of  the  peace,  and  the  parties  who  may 
be  brought  before  him  have  no  means  of  getting  rid  of  his  author- 
ity. His  liability  to  the  public  cannot  in  any  way  affect  the  pri- 
vate rights  upon  which  he  has  adjudicated,  and  the  tedious  pro- 
ceeding of 'quo  warranlo  is  the  only  remedy. 

The  statute  makes  the  taking  and  subscribing  the  oath  of  office, 
executing  the  bond,  and  filing  and  recording  both,  conditions  pre- 
cedent, which  must  be  complied  with  before  any  one  enters  upon 
the  discharge  of  the  duties  of  the  office  of  justice  of  the  peace. 
Until  these  pre-requisites  are  complied  with,  he  is  not  an  officer 
either  de  jure  or  de  facto. 

Opinion  of  the  Court  by  Judge  Iiivix;  Chief  Justice  Durof  dis- 
senting: 

Upon  examination  of  this  case  it  appears  that  the  plaintiff  com- 
menced, on  the  2d  day  of  September,  1841,  a  suit  before  a  jus- 
tice of  the  peace  (Bennet  Atwood)  in  and  for  the  county  of  Grant, 
againsi  the  defendant,  by  process  returnable  on  the  ninth  of  said 
month,  when  the  parties  appeared,  and  under  the  provisions  of  the 
statute,  removed  it  before  another  justice  of  the  peace,  Cyrus  K. 
Lord.  The  suit  was  to  recover  damages  for  injury  done  by  de- 
fendant to  a  horse  of  plaintiff's,  and  for  which  a  jury  found  a  ver- 
dict in  favor  of  plaintiff  for  forty-two  dollars  and  fifty  cents,  on 
which  the  justice  gave  judgment,  and  from  which  the  defendant 
appealed  to  the  District  Court  of  Grant  county,  in  which,  when 
the  cause  came  on  for  further  trial,  the  "  defendant  by  his  attor- 
torney,  moved  the  court  to  dismiss  this  cause,  because, 

1st.  The  said  C.  K.  Lord,  before  whom  the  cause  was  tried, 
has  never  executed  a  bond  to  the  Treasurer  of  Grant  county  as 
required  by  the  law  to  be  executed  by  all  justices  of  the  peace, 
before  entering  upon  the  duties  of  his  office. 

2d.  Because,  at  and  before  the  trial  of  the  said  cause  before  the 
said  C.  K.  Lord,  the  was  no  bond  or  oath  of  office  on  record  in  the 
office  of  the  clerk  of  the  Distiict  Court  of  Grant  county,  as  requir- 
ed by  law;"  which  motion  was  sustained, and  the  cause  dismissed  at 
plaintiff's  costs,  and  to  which  decisioii  exception  was  taken  by 
plaintiff,  and  the  cause  brought  here  to  correct  the  error  as  com- 
plained of  in  that  decision  and  judgment  of  the  District  Court. 

The  only  question  presenting  itself  here  for  the  consideration 


72  REPORTS. 

of  the  court  is;  did  the  District  Court  err  in  permitting  the  quali- 
fications of  C.  K.  Lord  (the  justice  before  whom  the  cause  was 
tried)  to  be  inquired  into  and  acted  upon  collaterally?  It  is  con- 
tended that  the  court  did  err,  and,  in  support  of  the  position,  re. 
fere:ice  is  made  to  a  decision  of  this  court  at  a  former  session, 
Lask  vs.  U.  S.  July  Term,  1840;  9  Wendell,  464;  vol.  7  Ameri- 
can Com.  Law,  pages  477,  to  478;  and  numerous  other  authori- 
ties.    In  1  Penn.  Reports,  297,  in  the  case  of  iVIc  Kim  and  Arm- 
strong against  Somers,  in  error,  the  question  arose  on  an  objec- 
tion to  a  deposition  alledged  to  have  been  taken  before  a  justice 
of  the  peace  whose  commission  had  been  vacated  by  force  of  law. 
The  decision  of  the  court  was  against  the  objection,  and  inasmuch 
as  the  judge  who  delivered   the  opinion,  has  gone  fully  into  the 
consideration  of  the  subject,  we  could  not,  perhaps,  do  better  than 
to  give  his  views  as  he  has  given  them  himself,  believing,  as  a  major- 
ity of  this  court  does,  that  it  is  a  case  in  point.     Judge  Rogers  says : 
"  The  plaintiff  also  objected  to  a  deposition  in  evidence ,  on  the 
ground  that  Joel  C.  Bailey,  the  person  before  whom  the  deposi- 
tion was  taken,  was  not  a  justice  of  the  peace.     Whether  the  facts 
alledged  in  the  bill  of  exceptions  would  vacate  the  commission  of 
the  justice,  we  are  not  called  upon  to  determine.     Whenever  an 
information  is  filed,  it  will  be  time  enough  to  determine  the  ques- 
tion.    At  present  we  think  it  even  improper  to  intimate  an  opin- 
ion.    And  this  is  not  accorded  to  Mr.  Bailey  as  a  favor,  but  is 
nothing  more  than  common  even-handed  justice,  that  he  should 
have  an  opportunity  of  being  heard,  and  be  permitted,  if  occasion 
should  require  it,  either  to  traverse  the  facts,  or  contradict  the  con- 
clusions of  the  law  attempted  to  be  drawn  from  them.     It  would 
be  the  height  of  injustice  if  we  were  now  to  determine,  or  even 
suffer  his  right  to  hold  his  commission  to  be  called  in  question, 
in  a  cause  in  which  lie  is  no  parly  and  cannot  be  heard.     The 
counsel  for  the  defendant  objected  to  thu  court  goir.g  into  the 
question  whether  he  was  a  justice  de  jure  at  all,  and  in  this  we 
conceive  they  were  in  the  strict  line  of  their  duty.     They  con- 
tended, and  with  a  force  that,  has  not  been  weakened  by  the  reply, 
that  it  was  sufficient  for  their  purpose  that  he  held  a  commission 
from  competent  authority,  and  that  in  taking  the  deposition,  which 
is  an  oflicial  act,  he  was  acting  in  the  district  for  which  he  was  ap- 
pointed; that  this  constituted  him  a  justice  de  facto,  with  at  least 
colorable  authority;  and  that  as  long  as  the  commission  remain- 


REPORTS.  73 

ed,  without  being  superseded  by  the  Governor,  or  vacated  by  the 
Supreme  Court,  the  validity  of  his  acts  could  not  be  questioned. 
One  would  have  supposed  that  these  reasonable  objections  would 
have  been  entitled  to  respect;  for,  setting  aside  the  extreme  in- 
justice of  impeaching,  or  even  impairing  the  right  to  an  office, 
without  giving  an  opportunity  of  hearing  the  party  principally  af- 
fected by  the  decision,  ihe  inconvenience,  and  I  may  add,  in  some 
cases,  indelicacy  of  the  inquiry,  would  be  intolerable.  If  the 
plaintiff  had  been  heard  in  this  preliminary  matter,  the  opposite 
party  would  have  been  permitted  to  controvert  the  facts  by  the  in- 
troduction of  testimony  on  their  part,  and  this  would  open  a  scene 
which  I  should  be  sorry  to  see  exhibited  in  a  court  of  justice.  An 
examination  would  ensue  before  the  court,  which  in  some  cases 
would  last  a  week,  whether  a  deposition  should  be  received,  jn  a 
case  of  the  most  trifling  nature  and  amount,  as  the  court  would  be 
both  judge  and  jury.  The  inconvenience  of  this  novel  doctrine 
would  cause  them  to  pause  before  they  acceded  to  it.  If  I  under- 
stand the  counsel,  they  admitted  the  law,  in  its  full  force,  as  re- 
spects ministerial  officers,  but  denied  it  as  respects  judicial  offi- 
cers. I  should  bave  been  pleased  to  have  seen  some  authority 
in  which  the  distinction  is  taken;  the  reason  for  such  a  distinction 
is  not  very  apparent.  If  this  be  law  as  regards  ministerial  officers, 
which  may  be  shown  by  a  host  of  authorities,  I  say,  a  fortiori,  it 
should  be  so  held  in  the  case  of  judicial  officers.  The  law  is 
formed  on  policy  and  convenience,  reasons  which  apply  with  ten 
fold  force  to  officers  of  the  latter  description.''  And  afterwards, 
the  same  judge,  in  speaking  of  the  case  of  the  Commonwealth  vs. 
Richard  Bache,  says:  "  Richard  Bache  was  indicted  for  an  assault 
and  battery  on  Alderman  Binns.  The  indictment  contained  two 
counts;  one  for  an  assault  and  battery;  the  other  for  an  assault 
and  battery  upon  Alderman  Binns,  while  in  the  execution  of  the 
duties  of  his  office.  It  was  the  opinion  of  the  whole  court,  that 
Binns'  right  to  the  office  he  held,  could  not  be  questioned  on  the 
indictment,  and  we  accoidingly  suspended  giving  judgment,  and 
put  Bache  to  an  information  in  the  nature  of  a  writ  of  quo  war- 
ranto." 

A  majority  of  this  court  considers  this  the  true  doctrine  upon 
this  subject,  and  as  recognized  by  the  authorities  already  referred 
to,  as  well  as  11  Viner's  Abr.  114;  7  John.  549;  5  Wendell,  231; 
9  John.  135;  15  Mass.  170. 

10 


74  REPORTS. 

We  are  therefore  compelled  to  reverse  the  decision  of  the  Dis- 
trict Court,  with  costs. 

KXOWZTOXJ  for  pl'tfFin  error. 
BEVANS,  for  deft  in  error. 


WALLACE  UOWEN,  pi' tiff  in  error,     } 

rs.  >  Error  to  Dane  county. 

JONATHAN  TAYLOR,  deft  in  error.) 

WANT  of  notice  in  proccecings  by  attachment,  is  matter  in  abatement, 
and  not  in  arrest  of  jiulziiiunt. 

Defects  apparent  on  the  record  may  be  noticed  by  the  court,  although 
not  pointed  out  in  the  exceptions:  and  a  judgment  maj  be  arrested  for  an 
objection  on  the  fact'  of  the  record,  though  it  was  not  assigned  at  the  time 
of  making  the  motion. 

Where  a  plain'.iff  in  attachment  files  different  declarations  in  different 
forms  of  action,  there  must  be  a  separate  verdict  and  judgment  on  each 
declaration;  a  general  verdict  without  any  special  reference  to  the  differ- 
ent declarations,  should  be  set  aside  and  the  judgment  arrested. 

Row  en  sued  out  a  writ  of  attachment  in  the  Dane  District  Court, 
against  Taylor,  for  $100.  or  upwards.  The  writ  was  issued  on 
the  13th  May,  18-41,  and  returnable  to  the  November  term,  1841. 
At  the  return  term  the  first  default  was  taken;  and  at  the  May 
term,  18-12,  the  plaintiff  filed  two  declarations;  one  in  debt  for 
$1330  67,  and  one  in  case,  claiming  ,92000  damages,  for  a  breach 
of  simple  contract;  and  at  that  term  the  second  default  was  taken 
and  a  writ  of  inquiry  awarded.  Pending  the  execution  of  the  writ 
of  inquiry  at  the  same  term,  and  after  the  jury  had  been  sworn,  the 
defendant  made  his  first  appearance  in  the  cause,  and  moved  the 
court  to  dismiss  the  proceedings,  because  no  notice  had  been  pub- 
lished as  required  by  the  statute,  but  immediately  withdrew  his 
motion,  and  the  inquest  proceeded.  The  jury  returned  a  verdict 
for  §08V)  \<)  debt,  uid  .^feO  50  damages.  Taylor  then  moved  the 
court  to  set  aside  the  verdict  and  arrest  the  judgment,  because, 

"  1 .  There  was  no  publication  of  the  pendency  of  the  attach- 
ment. 

2.  The  proceedings  arc  irregular,  defective  and  uncertain. 


REPORTS.  75 

3.  The  verdict  of  the  jury  is  contrary  to  evidence  and  the  in- 
structions of  the  court." 

Upon  this  motion  the  District  Court  arrested  the  judgment  and 
dismissed  the  proceedings;  and  Rowen  has  sued  out  a  writ  of  er- 
ror from  this  court  to  reverse  that  judgment,  which  he  alledges  was 
erroneously  given. 

WIIITON  and  STRONG,  for  pl'tff  in  error: 

The  judgment  of  the  court  below  ought  not  to  have  been  ar- 
rested and  the  suit  dismissed,  for  the  reasons  stated  in  the  mo- 
tion. It  \v;is  the  duty  of  the  court  at  the  second  term,  to  default 
the  defendant,  and  the  right  of  the  plaintiQ'to  file  as  many  declar- 
ations as  he  had  causes  of  action.  Rev'd.  Stat.  Wis.  100,  167, 
sec.  7.  The  matters  alleclged  in  the  defendant's  motion  are  mat- 
ters in  abalement,  or  at  most,  grounds  for  a  new  trial  only,  and 
are  not  good  in  arrest  of  judgment. 

Further,  the  defect  in  the  proceedings,  if  any  exists,  is  cured 
by  the  statute  of  amendments,  especially  after  verdict,  as  in  this 
case,  and  the  judgment  cannot  be  arrested  on  the  grounds  alled- 
ged.  Rev'd.  Stat.  Wis.  257,  258. 

FIELD  and  BOTKIN,  for  deft  in  error: 

The  statute  of  amendments  does  not  reach  this  case.  A  ver- 
dict which  cures  defects  is  a  verdict  upon  an  issue  of  fact  in  the 
cause,  and  not  the  verdict  of  a  jury  of  inquest  after  a  judgment  by 
default. 

Attachment  is  a  rigorous  remedy  and  must  be  strictly  pursued, 
and  every  provision  of  the  law  is  to  be  rigidly  construed  against 
the  plaintiff.  Publication  of  notice  comes  in  the  place  of  a  sum- 
mons, and  only  amounts  to  constructive  notice.  It  is  intended  to 
inform,  not  only  the  defendant  but  all  his  other  creditors,  of  the 
pendency  of  the  proceedings,  and  the  statute  is  peremptory,  that 
where  notice  has  not  been  published  the  writ  shall  be  quashed; 
and  the  court  is  bound  to  notice  the  matter  at  any  stage  of  the 
case  before  appearance  and  full  defence  made. 

Again;  the  verdict  is  so  uncertain  that  it  cannot  be  applied  to 
the  declarations,  and  no  judgment  could  be  rendered  upon  it. 

Opinion  of  the  Court,  by  Judge  MILLER: 

This  suit  was  commenced  by  attachment  in  the  District  Court 
of  Dane  county,  by  the  plaintiiT  against  the  defendant,  on  an  affi- 
davit alledging  fraud.  At  the  second  term,  in  pursuance  of  the 
statute,  the  plaintiff  filed  tsvo  declarations  against  the  defendant, 


76  REPORTS. 

and  took  a  second  default.  A  jury  was  then  called  and  sworn  tq 
assess  the  damages,  and  afterwaras  the  defendant's  counsel  filed 
a  motion  in  arrest  of  judgment  on  the  following  grounds: 

1.  Thai  the  attachment  affidavit  and  levy  are  defective. 

2.  There  was  no  publication  of  the  pendency  of  the  attach- 
ment. 

3.  The  proceedings  are  irregular,  defective,  and  uncertain. 
Upon  this  motion  the  District  Court  ordered,  that  the  judgment 

be  arrested,  and  that  this  cause  be  dismissed  at  the  costs  of  the 
plaintiff.  To  reverse  this  judgment,  the  plaintiff  sued  out  this 
writ  of  error. 

The  attachment  is  informal,  but  not  defective.  The  affidavit 
is  correct,  according  to  the  statute.  The  return  does  not  state 
what  property  or  effects  of  defendant  were  found  in  the  possession 
of  the  garnishee,  but  he  appeared  in  pursuance  of  notice  and  dis- 
closed what  were  in  his  hands,  which  were  choses  in  action.  This 
proceeding,  in  this  particular,  should  be  considered  correct,  partic- 
ularly at  the  time  the  objection  was  made. 

As  it  regards  the  second  objection ;  it  appears,  that  after  the  ju- 
ry was  sworn,  and  part  of  the  testimony  received,  the  defendant 
by  his  attorney  moved  the  court  to  abate  the  proceedings  for  want 
of  the  publication  of  the  pendency  of  the  attachment,  and  imme- 
diately withdrew  it,  and  let  the  investigation  proceed.  It  also  ap- 
pears, that  although  this  was  a  judgment  by  default,  yet  the  de- 
fendant, by  his  attorney,  appeared  when  the  jury  was  sworn.  If 
the  counsel  had  persisted  in  his  motion  to  abate,  there  would  have 
been  no  difficulty  in  the  case.  It  was  at  the  second  term,  at  the 
first  appearance  of  the  defendant,  and  it  would  have  been  the  du- 
ty of  the  court  to  abate  the  proceedings,  for  the  law  is  imperative. 
But  he  withdrew  his  motion,  and  let  the  investigation  proceed,  un- 
til a  finding  to  a  large  amount  was  returned  against  him.  The 
practice  of  the  law  is  a  regular  system,  and  in  it  there  is  a  time 
for  every  tiling.  But  even  without  this  objection  to  the  proceed- 
ings of  the  defendant's  counsel,  the  motion  filed  after  the  verdict, 
does  not  meet  his  case.  The  motion  is  in  arrest  of  judgment,  for 
want  of  publication.  The  wani  of  notice  is  matter  in  abatement, 
not  in  arrest.  4  Yeats,  375. 

On  the  third  exception  the  record  was  examined  thoroughly, 
and  although  the  exception  does  not  point  out  the  irregularities 
or  defects,  yet  the  court,  on  it,  may  notice  defects  apparent  on  the 


REPORTS.  77 

record.  A  judgment  may  be  arrested  for  an  objection  on  the  face 
of  the  record,  though  it  was  not  assigned  at  the  time  of  filing  the 
motion  or  entering  the  appeal;  Grosser  r.?.  Eckhart,  1  Binney, 
575.  In  this  case,  the  plaintiff  filed  two  declarations ;  one  in  debt, 
on  a  judgment  recovered  and  other  matters;  the  other  in  case,  for 
damages  for  breach  of  a  contract.  The  jury  was  sworn  gener- 
ally, who  reported  a  verdict  in  debt  and  damages,  without  any  spe- 
cial reference  to  these  declarations.  Under  the  seventh  section 
of  the  attachment  law,  the  plaintiff',  and  every  other  creditor  of  the 
defendant,  may  file  their  declarations.  This  allows  the  plaintiff 
to  file  his  declaration  on  the  claim  on  which  the  attachment  was 
issued,  and  also  additional  declarations,  as  other  creditors,  on  oth- 
er and  different  causes  of  action;  but  there  must  be  a  separate 
judgment  on  each  declaration  filed.  These  two  declarations  are 
so  dissimilar  and  inconsistent,  that  they  cannot  support  a  general 
verdict.  The  same  reason  for  arresting  the  judgment  in  this  case, 
exists,  that  would  have  existed  if  they  were  embraced  in  separate 
counts  of  the  same  declaration.  For  this  reason  the  District 
Court  was  correct  in  arresting  the  judgment. 

Judgment  affirmed,  with  costs. 

WIIITON  and  MOSES  M.  STRONG,  for  pl'tff  in  error. 

FIEJLD  &.  BOTKIN,  for  deft  in  error. 


78  REPORTS. 


A  DARK  COLORED  NE'VLY 

DECKED  SCOW  BOAT^'/i/m  error.     R        fo  Milwaukee  county, 
rs.  J 

JOHN  LYNN,  dcf't  in  error. 

A  SCOW-BOAT,  belonging  to  a  particular  port,  and  used  as  a  lighter  ana 
wood  boat  in  the  river  and  harbor,  is  n.it  liable  to  be  proceeded  against  by 
attachment  under  the  act  to  provide  for  the  collection  of  demands  against 
boats  and  vessels. 

That  act  was  intended  to  apply  to  steam-boats  aril  sail,  or  other  vessels 
of  the  larger  class,  engaged  in  carrying  and  transporting;  persons  and  pro- 
perty froni  port  to  port,  and  does  not  embrace  scow-boats,  ferry-boats,  and 
other  smaller  craft,  confined  in  their  use  to  particular  ports  or  places. 

Lynn,  the  defendant  in  error,  tuok  out  an  attachment  from  a 
justice  of  the  peace  in  Milwaukee  county,  against  the  Scow-Boat, 
under  the  act  to  provide  for  the  collection  of  demands  ngainst 
boats  and  vessels,  for  the  purpose  of  collecting  a  demand  for  work 
and  labor  done  on  the  boat  in  building  it.  The  boat  was  owned 
by  Dousman  &  Brown,  of  Milwaukee.  On  the  trial,  the  justice 
gave  judgment  for  the  plaintiff  for  $27  87,  from  which  Dousman 
&,  Brown  appealed  to  the  Milwaukee  District  Court.  On  the  tri- 
al of  the  appeal,  it  appeared  in  the  evidence  for  the  plaintiff,  that 
the  plaintiff  had  done  work  and  labor  on  the  boat  in  building  it; 
thr.t  the  boat  was  designed  and  used  as  a  lighter  in  the  river  and 
harbor  of  Milwaukee,  and  in  carrying  out  wood  to  the  steam-boats 
in  Milwaukee  Bay,  and  (vas  not  used  in  navigating  from  port  to 
port.  The  counsel  for  Dousrnan  &  Brown  moved  the  court  to  in- 
struct the  jury  as  in  case  of  a  nonsuit,  on  the  ground  that  the  scow- 
boat  was  not  a  boat  or  vessel  within  the  meaning  of  the  act,  and 
consequently,  was  not  liable  to  the  proceeding;  which  instruction 
the  court  refused  to  give,  and  instructed  the  jury  that  the  scow- 
boat  was  a  boat  or  vessel  within  the  meaning  of  the  act,  and  that 
the  plaintiff  should  recover  if  the  jury  should  find  that  he  had  per- 
formed the  work  and  labor  charged  in  the  declaration. 

The  jury  returned  a  verdict  in  favor  of  the  plaintiff,  upon  which 
the  court  rendered  judgment;  to  reverse  which  judgment  the  own- 
ers of  the  scow-boat  have  prosecuted  this  writ  of  error ;  and  the 
only  question  in  the  case  arises  upon  the  instructions  refused,  and 
those  given  by  the  court  to  the  jury. 


REPORTS.  79 

The  case  was  argued,  ex  pctrtc,  by  WELLS  for  the  plaintiff  in 
•error. 

The  only  question  for  the  court  to  determine  is;  whether  the 
scow-boat  is  a  boat  or  vessel  within  the  meaning  of  the  law  or  not. 
The  words,  boat  or  vessel,  are  to  be  governed  by  the  words,  nav- 
igate and  navigation,  which  mean,  to  sail  as  in  ships;  passing 
from  port  to  pott  for  the  purpose  of  carrying  persons  or  property. 
A  scow-boat  or  ferry-boat  is  not  engaged  in  navigation,  in  the  pro- 
per sense  of  the  word,  and  is  not  within  the  meaning  of  the  statute. 

Where  the  proceeding  is  by  attachment  under  the  act,  it  must 
be  against  the  boat  by  name;  this  shows  that  the  legislature  in- 
tended to  apply  it  to  a  larger  and  different  class  of  vessels,  which 
in  all  the  civilized  world  have  distinctive  proper  names.  This 
scow-boat  has  no  name,  it  is  not  sued  by  name,  but  by  descrip- 
tion. This  is  a  material  matter  for  consideration.  A  craft  that 
was  too  insignificant  to  have  a  name  was  too  unimportant  to  en- 
gage the  attention  of  the  legislature. 

The  statute  of  the  Territory  is  similar  (o  the  statute  of  New 
York  upon  the  same  subject;  the  only  material  difference  is,  that 
in  that  State  the  word  ships  is  used  instead  of  the  word  boats,  as 
in  the  act  of  our  legislature.  1  Rev'd  Stat.  N.  Y.  130.  The  dif- 
ference in  the  words  can  make  no  difference  in  construing  the 
meaning  of  the  law.  In  that  State,  the  courts  have  decided  in 
numerous  cases,  that  boats  of  a  much  more  important  class  than 
this  scow-boat,  were  not  liable  to  this  mode  of  proceeding,  as  not 
being  within  the  meaning  of  the  law.  Walker  and  others  vs. 
Sloop  Rochester,  1  Wendell,  557;  Johnson  vs.  S.  B  Sandusky, 
5  Wendell,  510;  Farmer's  Delight  vs.  Lawrence  <$f  Sneden,  5 
Wendell,  504 ;  Burkbeck  vs.  Hoboken  Ferry  Boat,  17  John  Rep. 
54;  5  Cowen,  564. 

Chief  Justice  DUNN  delivered  the  following  opinion  of  the 
court: 

The  proceedings  in  this  case  were  originally  instituted  before 
a  justice  of  the  peace  of  Milwaukee  county,  by  John  Lynn,  defen- 
dant in  error,  against  the  Scow-Boat,  plaintiff  in  error,  under  the 
statute  of  this  Territory  providing  for  the  collection  of  demands 
against  boats  or  vessels  used  in  navigating  our  waters.  The  pro- 
ceeding was  commenced  in  the  usual  form,  by  filing  a  complaint, 
which  was  for  work  and  labor  performed  upon  said  scow-boat, 
supposed  to  be  the  property  of  Dousman  &  Brown.  On  the  re- 


80  REPORTS. 

turn  of  the  writ,  Brown  appeared,  as  one  of  the  owners  of  the  scow, 
and  defended  against  the  claim  or  demand  of  said  Lynn,  defendant 
in  error  and  plaintiff  below,  and  upon  trial  judgment  was  render- 
ed for  Lynn  against  the  scow  for  the  sum  of  $42  50  damages, 
from  which  decision  the  said  owner  of  the  scow  took  an  appeal 
to  the  District  Court  of  Milwaukee. 

On  the  trial  of  the  cause  in  the  District  Court,  it  appeared  in  ev- 
idence, that  the  said  scow  was  used  as  a  lighter  in  the  Milwaukee 
river  and  bay,  in  transporting  from  and  to  the  boats  and  other  ves- 
sels in  the  bay,  and  in  carrying  out  to  the  boats  and  vessels,  wood, 
&c. ;  and  that  it  was  not  a  sail-vessel,  and  was  not  used  in  navi- 
gating or  sailing  from  port  to  port,  but  merely  as  a  lighter. 

The  cause  was  submitted  to  the  jury,  and  the  counsel  for  the 
defendant  moved  the  court  to  instruct  the  jury,  that  the  scow  was 
not  a  boat  or  vessel  within  the  meaning  of  the  statute;  that  the 
same  was  not  liable  under  the  "  act  to  provide  for  the  collection  of 
demands  against  boats  and  vessels  navigating  the  waters  of  this 
Territory;"  which  instruction  was  refused,  and  the  court  charged 
the  jury  expressly,  that  the  scow  in  question  was  a  boat  or  vessel 
within  the  meaning  of  the  said  act:  to  which  refusal  and  charge 
the  defendant  exccpted.  The  case  is  thus  brought  into  this  court 
upon  error  to  the  decision  of  the  District  Court  in  refusing  the 
charge  asked,  and  giving  the  charge  which  was  given  to  the  jury. 

The  only  question  to  be  decided  by  this  court  is,  whether  the 
scow  in  question  is  or  not  a  boat  or  vessel  within  the  meaning 
of  the  act  of  the  legislature  to  which  reference  has  been  made.  In 
considering  this  question,  we  must  examine  that  part  of  the  act 
which  is  applicable,  and  upon  which  the  proceeding  in  this  case 
is  based.  In  Revised  Statutes,  page  168,  sec.  I,  it  is  provided: 
"  That  every  boat  or  vessel  used  in  navigating  the  waters  of  this 
Territory,  shall  be  liable,"  &.o.  Where  a  law  is  couched  in  words 
in  definite  and  limited  sense,  entirely  free  from  ambiguity,  and 
such  as  cannot  be  expanded  or  dilated  in  their  signification,  then 
there  is  no  room  for  construction  or  inference  from  any  thing  out 
of  the  plain  import  and  meaning  of  the  words  used.  But  it  does 
frequently  occur  that  words  are  used  in  our  statute  books,  which 
have  so  very  comprehensive  a  meaning,  and  may  be  applied  in  so 
many  ways,  that  we  are  compelled  to  resort  to  various  aids  to  en- 
able us  to  apply  the  rreaning  intended  by  the  legislature.  "Nav- 
igating," in  the  act  before  us,  in  its  most  extended  meaning,  might 


REPORTS.  81 

embrace  all  and  every  description  of  boat,  vessel,  or  water  craft, 
employed  in  floating  persons  or  properly  upon,  or  over  our  waters. 
But  we  must  look  to  the  various  provisions  of  this  act,  and  from 
the  whole,  taken  together,  giving  to  each  provision  an  effective  and 
useful  construction,  in  reference  to  the  evil  intended  to  be  pre- 
vented, and  the  remedy  to  be  secured,  arrive  at  such  rational  con- 
clusion as  is  warranted  by  the  soundest  principles  of  construction. 
Thereby  we  will  elicit  the  intent  and  meaning  of  the  legislature, 
and  this  should  always  govern  in  expounding  laws  which  are  at  all 
doubtful  or  ambiguous. 

What  are  the  claims  which  may  be  proceeded  for  under  the 
provisions  of  this  act?  "  1st.  For  all  debts  contracted  by  the  mas- 
ter, owner,  agent,  or  consignee,  on  account  of  supplies  furnished 
for  the  use  of  such  boat  or  vessel;  on  account  of  work  done  or  ser- 
vices rendered  on  board  of  such  vessel  or  boat;  or  on  account  of 
labor  done  or  materials  furnished  by  mechanics,  tradesmen,  or  oth- 
ers, in  and  for  building,  repairing,  fitting  out,  furnishing,  or  equip- 
ping such  boat  or  vessel.  2d.  For  all  sums  due  for  wharfage  or 
anchorage  of  such  boat  or  vessel,  within  this  Territory.  3d.  For 
all  demands  or  damages  accruing  from  the  non-performance  or 
malperformance  of  any  contract  of  affreightment,  or  any  contract 
touching  the  transportation  of  persons  or  property,  entered  into  by 
the  master,  owner,  agent,  or  consignee  of  the  boat  or  vessel  on 
which  such  contract  is  to  be  performed:  and  4th.  For  all  injuries 
done  to  persons  or  property  by  such  boat  or  vessel."  The  pro- 
visions of  a  single  statute,  or  one  embracing  but  one  subject  mat- 
ter of  legislation,  should  be,  and  usually  are  consistent,  havingdi- 
rect  and  pertinent  relation,  the  one  with  the  other.  In  the  speci- 
cation  of  claims  which  may  be  recovered  against  a  boat  or  vessel 
under  this  act,  what  reference  or  application  can  the  words,"  mas- 
ter," "  consignee,"  "  fitting  out,"  "  furnishing  or  equipping,"  "  an- 
chorage," &.c.  have  to  a  scow,  used  as  a  lighter  and  wood  boat  to 
vessels  or  stc  am-boats  in  the  river  and  bay  of  Milwaukee  ?  Again, 
it  is  provided  that  such  claims  as  have  been  enumerated  maybe 
proceeded  for,  against  the  vessel  or  boat  navigating  the  waters 
of  this  Territory,  by  name.  Immemorial  usage  has  given  to  com- 
mercial or  navigating  boats  or  vessels,  a  distinctive  proper  name, 
and  to  such  this  provision  applies,  and  not  to  scows,  ferry-boats, 
yawls,  arks,  flats,  canoes,  &.c,,  which  have  technical  descriptive 
names  and  not  proper  names.  The  remedy  intended  to  be  affor- 

11 


82  REPORTS. 

ded  to  meritorious  claimants  under  this  act,  is  obvious.  To  aid 
commerce  and  trade,  inducements  are  held  out  in  the  law,  to  buil- 
ders, repairers,  owners  of  boat  stores,  merchants  and  dealers  who 
wish  to  contract  for  carrying  freights,  to  engage  and  contract  with 
owners,  masters,  agents  or  consignees  of  boats  or  vessels  naviga- 
ting our  waters,  and  engaged  in  the  carrying  and  transporting  and 
transportation  from  port  to  port,  of  persons  and  property,  through 
the  prompt  remedy  given  them  against  the  boat  or  vessel  so  enga- 
ged, by  name,  without  compelling  them  to  resort  to  a  suit  against 
the  master,  owner,  agent,  or  consignee,  who  may  not  be  at  the 
time  within  the  jurisdiction  of  the  courts  in  the  Territory  where 
the  credit  is  given.  Such  a  provision  would  not  be  necessary  in 
relation  to  scows,  &.C.,  which  are  not  sent  from  abroad  to  navigate 
our  waters,  but  are  confined  to  particular  ports  or  wharves,  rarely 
go  out  of  sight  of  the  port  where  they  have  a  special  and  limited 
use,  and  are  always  owned.  It  is  scarcely  required  further  to  il- 
lustrate or  draw  the  line  of  distinction,  as  must  have  been  inten- 
ded by  the  legislature.  We  may  be  aided,  however,  by  decisions 
of  the  highest  courts  in  the  States  on  similar  statutes.  In  the  case 
of  the  Farmers'  Delight  vs.  Lawrence  <$f  Sneden,  5  Wendell,  564  ; 
the  court  were  of  opinion,  that  the  New  York  acts  were  not  ap- 
plicable to  a  boat  whose  ordinary  business  was  confined  to  a  par- 
ticular port  or  place,  and  out  of  sight  of  which  it  never  went,  ex- 
cept temporarily  and  for  a  special  purpose.  In  the  case  of  the 
owners  oT  the  Sloop  Rochester  vs.  Walker  <Sf  Me  Farlan,  1  Wen- 
dell, 577,  the  court  said;  "  it  never  could  have  been  the  intention 
of  the  legislature  to  embrace  within  these  acts,  the  innumerable 
row  boats,  sail  boats,  scows,  and  other  small  craft  which  crowd  our 
harbors;  they  are  not  within  the  reason  of  the  law,  nor  within  its 
terms  as  they  are  ordinarily  used.  They  are  not  designated  as 
ships  or  vessels  in  common  parlance.  These  terms  are  usually 
applied  to  vessels  of  a  larger  class."  See  Burkbcck  vs.  Hoboken 
horse  ferry-boat,  17  John.  Rep.  54;  and  Johnson  vs.  S.  B.  San- 
dusky,  5  Wendell, 510;  where  the  same  opinion  is  recognized. 

We  are,  therefore,  unanimously  of  opinion,  that  the  District 
Court  erred  in  refusing  the  instructions  asked,  and  in  giving  the 
instructions  which  it  did,  and  that  the  decision  be  reversed,  and 
the  cause  remanded  to  the  said  District  Court,  for  such  other  pro- 
ceedings as  may  be  proper  and  legal. 

WELLS,  for  pl'lffm  error. 


REPORTS.  83 


JAMES  MORRISON,  ppff  in  error,) 

\s.  >  Error  to  Dane  county. 

ROBERT  L.  REAM,  def  tin-error,  ) 

WHERE  a  writ  of  attachment  is  quashed  upon  motion  for  the  insufficiency 
of  the  affidavit,  although  it  has  been  personally  served  on  the  defendant, 
the  suit  must  be  dismissed,  with  costs,  and  it  cannot  proceed  as  in  ordinary 
cases  of  summons 

An  affidavit  which  only  states  the  aggregate  of  the  plaintiff's  claim,  and 
shows  that  the  defendant  has  counter  claims  as  a  set-off,  but  does  not 
state  that  there  is  any  balance  due  to  the  plaintiff,  or  show  the  amount  that 
is  due,  is  not  sufficient  to  authorize  the  issuing  of  a  writ  of  attachment. 

The  facts  necessary  to  entitle  a  party  to  the  writ,  must  be  proven  to  the 
satisfaction  of  a  judge  or  supreme  court  commissioner,  by  legal  evidence  of 
the  party  or  a  witness;  mere  belief  is  not  sufficient;  nothing  but  facts  and 
circumstances  will  do. 

Where  fraud  is  charged  ns  the  ground  for  issuing  the  writ,  the  judge  or 
commissioner  must  be  satisfied  that  the  fraud  exists  by  proof  ot  facts  and 
circumstances  sufficient  to  raise  such  strong  presumptions  of  guilt  as  would, 
without  contradiction  or  explanation,  induce  the  officer  to  convict  tho  de- 
fendant of  tht;  charge  if  he  was  on  trial  before  a  petit  jury ;  the  mere  belief 
of  any  person  is  not  sufficient. 

If  the  officer  indorses  his  satisfaction  on  the  affidavit,  the  court  may  go 
behind  the  indorsement,  and  examine  the  affidavit  itself;  and  if  the  facts 
and  circumstances  are  not  sufficiently  proven  to  authorize  the  issuing  of  the 
writ,  it  may  be  quashed  upon  motion. 

Morrison  sued  out  a  writ  of  attachment  against  Ream  in  the 
Dane  District  Court,  on  the  25th  March,  1842,  founded  upon  an 
affidavit,  which  is  embodied  in  the  opinion  of  the  court.  The  su- 
preme court  commissioner  before  whom  the  affidavit  was  made  in- 
dorsed upon  it  the  following  certificate  of  his  satisfaction: 

"  Agreeably  to  the  requirements  of  the  act  approved  February 
15th,  1842, 1  hereby  certify,  that  I  am  satisfied  of  the  truth  of  the 
facts  set  forth  in  the  above  affidavit,  and  that  the  plaintiff  is  entitled 
to  a  writ  of  attachment.  Given  under  my  hand,  at  Madison,  this 
25th  day  of  March,  1842. 

[Signed]  ALBERT  W.  PARRIS, 

Supreme  Court  Conrr,  Dane  County." 

The  writ  of  attachment  concluded  with  a  summons,  and  was 
personally  served  on  the  defendant. 

At  the  return  term  the  defendant  moved  the  court  to  quash  tho 
writ,  because  of  the  insufficiency  of  the  affidavit,  and  of  the  in- 
dorsement of  satisfaction. 

The  District  Court  sustained  the  motion,  and  dismissed  the 


84  REPORTS. 

suit;  and  Morrison  sued  out  this  writ  of  error  to  reverse  the  judg- 
ment. 

Two  questions  were  presented  for  the  consideration  of  this 
court:  Whether  the  District  Court  erred  in  quashing  the  attach- 
ment; and  whether,  where  the  attachment  is  quashed,  and  there 
has  been  personal  service  of  the  summons,  it  is  error  to  dismiss 
the  suit. 

BRIGHAM,  for  plaintiff  in  error: 

The  court  below  ought  not  to  have  quashed  the  writ  upon  the 
motion.  The  statute  affords  the  defendant  a  different  remedy, 
by  traversing  the  affidavit;  and  if  the  decision  shall  be  in  his  fa- 
vor, his  property  is  released,  and  the  suit  progresses;  the  writ  is 
not  quashed.  The  writ  is  two-fold:  to  attach,  and  to  summon;' 
and  if  the  attachment  is  bad,  the  summons  should  not  be  quashed, 
for  by  it  the  defendant  is  brought  into  court,  as  in  culinary  cases. 
The  court  below  ought  not  to  have  considered  the  motion,  but  left 
the  party  to  his  remedy  pointed  out  in  the  act.  The  law  has  made 
the  officer  before  whom  the  proof  is  made  the  judge  whether  the 
attachment  ought  to  issue;  and  if  he  is  satisfied  of  the  facts,  and 
so  certifies,  the  court  cannot  look  beyond  his  certificate,  If  he 
certifies  that  the  proof  before  him  was  sufficient  to  satisfy  his 
mind  that  the  necessary  facts  exist,  the  court  is  bound  to  be- 
lieve that  they  were  proven  to  his  satisfaction.  But  if  the  court 
can  look  into  the  affidavit,  and  judge  of  its  sufficiency,  it  will  be 
found  that  the  officer  had  enough  before  him  to  satisfy  him  that 
the  facts  existed. 

CLARK,  for  defendant  in  error: 

The  court  is  asked  to  give  a  strained  construction  to  the  act  of 
1842.  The  right  of  the  defendant  to  traverse  the  affidavit,  and 
if  it  appears  to  be  false,  to  have  his  property  released,  does  not 
deprive  him  of  the  right  to  have  the  writ  quashed  if  it  has  issued 
upon  an  insufficient  affidavit.  The  law  makes  the  affidavit  the 
foundation  of  the  writ  itself,  and  all  the  proceedings  under  it.  If 
the  affidavit  is  bad,  the  writ  has  improperly  issued,  and  the  de- 
fendant has  been  improperly  brought  into  court. 

WHITOX,  in  continuation: 

The  court  is  not  concluded  by  the  officer's  indorsement  of  sa- 
tisfaction. The  practice  of  other  courts  upon  similar  statutes  is» 
to  look  behind  the  certificate,  and  see  whether  the  officer  ought 
to  have  been  satisfied;  to  examine  the  affidavit,  and  test  its  suffi- 


REPORTS.  85 

cieucy  by  the  statute.  1  Cowen's  Treatise  479,  480.  10  Wen- 
dell, 420.  10  John,  Rep.  169.  Vosburg  vs.  Welsh,  11  John. 
Rep.  175.  Smith  vs.  Leivis,  14  Wendell,  237. 

The  court,  then,  will  examine  the  affidavit  in  this  case,  and  in 
doing  so,  it  will  be  found  to  be  defective  in  every  material  requi- 
site. As  to  the  indebtedness,  it  does  not  show  that  Ream  owed 
him  any  thing.  It  may  be  true  in  every  particular,  and  yet  Mor- 
rison may  be  indebted  to  Ream  on  a  balance  of  the  accounts  be- 
tween them.  The  facts  stated  are  not  sufficient  to  justify  either 
Morrison  or  the  officer  in  believing  that  tlie  charge  of  fraud  was 
true.  The  decisions  in  New  York  say,  that  the  belief  of  the  party 
is  neither  a  fact  nor  a  circumstance  from  which  the  officer  can  be 
satisfied  of  the  existence  of  a  cause  for  issuing  the  writ. 

FIELD,  in  leply: 

The  New  York  attachment  law  is  different  from  ours.  There 
the  officer  before  whom  the  proof  is  made  must  preserve  the  evi- 
dence, that  the  court  may  see  that  he  was  satisfied  upon  sufficient 
testimony.  2  N.  Y.  Rev.  Stat.  102.  Therefore,  the  decisions 
that  have  been  made  in  that  state,  are  not  conclusive  upon  the 
question  before  this  court. 

The  two  statutes  are  different  in  another  respect.  There  the 
party  must  state  a  sum  certain  to  be  due  after  allowing  all  credits 
and  off-sets.  Under  our  statute  it  is  sufficient  to  state  the  aggre- 
gate of  the  plaintiff's,  without  noticing  or  showing  any  set-off  of 
the  defendant,  leaving  that  matter  for  adjudication  in  the  case. 
The  affidavit  is  sufficient  in  this  particular.  It  shows  the  amount 
of  Ream's  indebtedness,  that  it  arises  out  of  contract,  and  for  what 
consideration. 

The  District  Court  certainly  erred  in  quashing  the  writ,  and 
dismissing  the  suit.  The  most  that  would  be  proper  in  the  case, 
under  the  provisions  of  the  statute,  considering  them  all  together, 
would  be  to  quash  the  attaching  part  of  the  writ,  and  release  the 
property,  without  dismissing  the  suit.  The  attachment  is  only  in 
aid  of  the  summons.  The  summons  brings  the  party  into  court 
to  answer  the  action;  the  attachment  holds  the  property  subject 
to  the  judgment  that  may  bo  obtained,  to  guard  against  the  fraud 
of  the  defendant.  In  this  case,  the  defendant  was  as  properly 
brought  into  court  by  this  writ  as  he  would  have  been  by  an  ordi- 
nary summons,  and  he  ought  to  be  held  to  answer  the  action. 

Judge  MILLEB  delivered  the  opinion  of  the  court: 


86  REPORTS. 

This  cause  was  commenced  by  attachment  in  the  District  Court 
of  Dane  county,  by  the  plaintiff  in  error  against  the  defendant  in 
error,  on  the  following  affidavit:  "James  Morrison,  being  duly 
sworn,  doth  depose  and  say,  that  Robert  L.  Ream  is  justly  indebt- 
ed to  him,  for  goods,  wares  and  merchandise  sold  and  delivered, 
money  lent,  paid,  laid  out  and  expended  for  the  use  of  said  Ream, 
in  the  sum  of  two  hundred,  eighty-two  dollars  and  sixty-six  cents, 
not  deducting  certain  counter  demands  and  set-off  claims  against 
the  above  claim  in  favor  of  said  defendant,  the  exact  amount  of 
which  counter  demands  this  affiant  is  not  knowing:  And  this  af- 
fiant swears  that  his  whole  claim  arises  from,  and  is  founded  in, 
contract:  This  affiant  further  deposes  and  says,  that  said  Ream 
is  about  fraudulently  to  dispose  of  his  property,  so  as  to  hinder  or 
delay  him,  the  said  James  Morrison  in  the  collection  of  his  said 
demands  against  him,  as  this  affiant  verily  believes;  because  this 
affiant  has  frequently  requested  said  Ream  to  settle  and  pay  him 
his  said  demands,  or  to  meet  him  for  the  purpose  of  adjusting  the 
same,  and  he  has  refused  so  to  do,  assigning  no  reasonable  cause 
for  neglecting  to  meet  this  affiant,  and  settling  his  said  demand; 
and  further,  said  Ream  very  recently  sold  off  his  goods  and  effects, 
or  the  principal  part  of  them,  as  this  affiant  verily  believes,  and  is 
about  to  remove,  with  his  family,  out  of  this  county,  and  to  leave 
no  property,  to  the  knowledge  of  this  affiant,  on  which  an  execu- 
tion can  be  levied  or  satisfied."  Which  affidavit  \vas  endorsed, 
satisfied,  by  a  supreme  court  commissioner. 

On  motion,  on  (he  part  of  the  defendant,  the  District  Court 
dismissed  the  proceedings.  In  this  there  was  no  error. 

The  affidavit  leaves  the  amount  claimed  too  vague  and  uncer- 
tain; and  the  alledged  fraud,  is  very  far  from  being  such  a  case 
as  to  warrant  this  writ.  It  cannot  be  pretended  that  this  affidavit 
shows  that  the  defendant  was  about  fraudulently  to  dispose  of  his 
property  to  defeat  or  delay  his  creditor. 

The  facts  necessary  to  entitle  a  party  to  a  writ  of  attachment, 
must  be  proven  to  the  satisfaction  of  judge  or  commissioner,  and 
the  circumstances  upon  which  the  belief  of  the  affiant  is  founded; 
and  by  the  act  of  Feb.  15,  1842,  should  be  embodied  in  the  depo- 
sition. Proof,  that  is,  legal  evidence,  from  the  party  or  a  witness, 
is  required.  Mere  belief  is  not  sufficient.  Nothing  short  of 
facts  and  circumstances  within  the  knowledge  of  the  affiant  will 
do;  11  John.  175.  The  Supreme  Court  of  New  York,  through 


REPORTS.  87 

along  train  of  decisions,  have  settled  the  practice,  that  the  insuf- 
ficiency of  the  proof,  may  be  taken  advantage  of  by  a  motion  to 
quash;  1  Cowen's  Treatise,  480.  Belief,  report,  information, 
or  suspicion,  are  not  sufficient;  10  Wendell,  420.  The  officer 
must  be  satisfied,  and  he  must  be  so  satisfied  from  proof  of  facts 
and  circumstances,  not  from  the  belief  of  any  one.  Such  facts 
must  be  proven,  as  will  leave  no  reasonable  doubt  on  the  mind  of 
the  officer,  that  the  defendant  is  about  to  commit  the  fraudulent 
acts  mentioned  in  the  statute.  For  instance,  if  the  party  proves 
positively,  that  the  defendant  declared  his  intention  to  remove  or 
sell  his  property  to  avoid  the  payment  of  his  debts,  the  officer 
could  draw  his  own  conclusions;  14  Wendell,  237.  3  Cowen, 
206.  14  John.  175,  257.  6  Wendell,  438.  6  Cowen.  234. 
The  requirements  of  the  act  should  be  strictly  fulfilled;  3  Cow- 
en,  206.  As  this  is  an  allegation  of  fraud,  and  in  its  nature  a 
criminal  proceeding,  the  officer  should  have,  at  least,  such  strong 
presumptive  proof,  as,  being  ur.contradicted  or  unexplained,  would 
induce  him  to  convict  the  defendant  of  the  charge,  if  he  were  on 
trial  before  the  petit  jury;  10  Wendell,  608. 

In  this  case  there  is  nothing  to  traverse;  the  fact  set  forth  in 
the  affidavit  not  being  sufficient  to  lay  the  foundation  lor  the  writ. 
When  a  writ  has  been  served  on  the  defendant,  the  publication  of 
notice  is  dispensed  with,  so  is  also  the  entering  of  the  defaults, 
but  the  defendant  must  appear  and  plead,  as  in  other  cases.  It  is 
contended  that  when  the  writ  was  obtained  upon  proof,  and  upon 
a  traverse  of  the  facts  it  is  made  to  appear  that  they  are  not  true  or 
•well  founded,  then,  by  the  direction  of  the  statute,  the  suit  be- 
comes nothing  more  than  if  it  had  been  commenced  on  summons. 
But  it  would  lead  to  oppression,  if  we  were  to  put  such  a  liberal 
construction  upon  the  act  as  to  save  the  suit  and  the  costs  to  the 
plaintiff  in  such  a  case,  or  a  case  like  the  present.  The  fourth 
section  of  the  act  authorizes  a  traverse  of  the  facts  set  forth  in  the 
affidavit,  and  if  their  falsity  should  be  made  to  appear,  the  proper- 
ty attached  shall  be  released.  The  act  no  where  says  that  if  the 
attachment  is  abated  or  quashed,  that  the  suit  shall  be  and  re- 
main as  in  cases  of  a  summons.  By  the  seventh  section,  in  case 
ot  personal  service  of  the  writ  upon  the  defendant,  it  shall  not  be 
necessary  to  call  the  defendant  and  have  his  default  entered, 
but  the  suit  shall  proceed  as  in  ordinary  cases  of  summons,  an-d 
no  notice  shall  be  required  to  be  published,  as  required  by  the 


88  REPORra 

third  section  of  the  act  to  which  this  is  amendatory.  From  the 
reading  of  this  section,  it  is  apparent  that  the  only  object  of  the 
legislature  in  providing  for  the  annexation  of  a  summons  to  the 
writ  of  attachment  was  as  herein  stated,  and  cannot  be  construed 
to  extend  to  the  relief  of  a  party  who  has  obtained  a  writ  of  attach- 
ment, without  having  strictly  complied  with  the  pre-requisites  of 
the  statute. 

The  judgment  is  therefore  affirmed  with  costs. 

BRIGHAM  and  FIELD,  for  pPff  in  error. 

CLARK  and  WHITON,  for  def  't  in  error. 


HEZEKIAH  H.  GEAR,  j»PJfn  error,) 

n.  >  Error  to  Iowa  county. 

CHARLES  BRACKEN,  deft  in  error,) 

IN  an  ac'iDn  of  debt  on  an  arbitration  bond  founded  on  an  agreement  of 
submission  and  an  award,  the  declaration  must  aver,  and  the  award  must 
show,  that  the  arbitrators  conformed,  in  every  material  respect,  to  the 
agreement  of  submission. 

Where  the  parties  agreed  to  submit  the  matters  in  dispute  between  them 
to  the  arbitration  and  award  of  the  committee  of  awards  of  the  Galena 
Chamber  of  Commerce,  to  arbitrate  and  award  according  to  the  by-laws, 
rules  ond  regulations  of  the  Chamber  of  Commerce,  the  award  must  show 
that  the  arbitrators  proceeded  according  to  such  by-laws,  rules,  and  regu- 
lations, or  it  is  void. 

Where  matters  in  dispute  are  submitted  to  arbitrators,  they  have  no  pow- 
er to  award  that  each  party  shall  execute  to  the  oiher  a  full  release  of  all 
demands  to  the  date  of  the  award. 

Arbitrators  have  no  power  to  award  costs  against  either  party;  nor  that 
the  sum  awarded  shall  be  paid  within  a  specified  time. 

On  the  sixth  day  of  September,  1839,  Gear  and  Bracken  enter- 
ed into  a  written  agreement,  under  seal,  to  submit  the  matters  in 
difference  between  them  to  the  arbitration  and  award  of  the  com- 
mittee of  awards  of  the  Galena  Chamber  of  Commerce  for  that 
month,  (naming  the  committee  in  the  agreement,)  "  according  to 
the  rules  and  regulations  of  the  aforesaid  chamber  of  commerce, 
as  provided  by  the  rules,  by-laws,  and  regulations  thereof;"  and 
they  executed  each  to  the  other  a  penal  bond  in  the  sum  of  $300 
conditioned  for  the  performance  of  the  award  when  made.  The 


REPORTS.  89 

committee  took  up  the  matter  for  arbitration  on  the  29th  of  Sep- 
tember, 1839,  and  made  an  award  in  writing  undw  the  seals  of 
the  arbitrators,  by  which  they  awarded  that  Bracken  should  pay  to 
Gear  the  sum  of  §188  42,  and  $13  50  for  costs,  which  should 
be  paid  in  Galena  in  fifteen  days  with  interest,  and  that  upon  the 
payment  being  made,  each  parly  should  execute  to  the  other,  in 
writing,  a  release  of  all  manner  of  demands  whatever  to  the  date 
of  the  award.  The  award  did  not  show  that  the  committee  pro- 
ceeded according  to  the  by-laws,  rules,  and  regulations  of  the  Ga- 
lena Chamber  of  Commerce. 

Bracken  refused  to  abide  by  and  perform  the  award,  and  Gear 
brought  an  action  of  debl  on  the  arbitration  bond  in  the  Iowa  Dis- 
trict Court.  The  declaration  set  out  the  substance  of  the  bond, 
the  agreement  to  submit,  and  the  award,  and  averred  the  breach 
in  the  non-payment;  but  there  was  no  averment  that  the  commit- 
tee of  awards  proceeded  in  the  arbitration  according  to  the  by- 
laws, rules,  and  regulations  of  the  Galena  Chamber  of  Commerce. 
Bracken  set  out  the  bond,  agreement  and  award,  on  oyer,  and  de- 
murred generally  to  the  declaration.  The  District  Court  sus- 
tained the  demurrer,  and  gave  judgment  for  the  defendant.  To 
reverse  this  judgment,  Gear  sued  out  a  writ  of  error,  and  has 
brought  the  cause  into  this  court. 

The  assignment  of  error  questions  the  decision  of  the  District 
Court  in  sustaining  the  demurrer  to  the  plaintiff's  declaration. 

MOSES  M.  STKONG, for  plaintiff  in  error: 

The  substance  of  the  bond,  the  agreement  of  submission,  and 
the  award,  is  set  out  in  the  declaration  according  to  their  legal  ef- 
fect. This  is  all  that  is  required.  If  the  declaration  had  have 
ave\red  that  the  award  was  made  according  to  the  by-laws,  rules, 
and  regulations  of  the  Galena  Chamber  of  Commerce,  it  perhaps 
could  not  have  been  proven.  The  award  itself  does  not  show  it, 
nor  was  it  necessary  that  it  should.  The  parties  mutually  select- 
ed a  commercial  tribunal,  not,  it  is  true,  established  by  law,  but 
of  very  general  use,  and  which  it  would  seem  had  rules  and  re- 
gulations, to  settle  their  disputes.  The  award  that  has  been  made, 
is  formal  and  complete,  and  the  presumption  is,  that  the  arbitra- 
tors conformed  to  the  rules  and  regulations  that  were  to  govern 
them,  until  it  shall  be  made  to  appear  to  the  contrary.  If  there 
was  any  departure  of  the  arbitrators  from  the  authority  conferred 
upon  them  by  the  parties,  that  would  violate  the  award,  the  defend- 

12 


90 

ant  should  have  pleaded  it,  and  made  an  issue  of  facts  to  be  tried 
by  a  jury.  Tire  ground  taken  is  not  good  on  demurrer. 

DUNN  and  BUKNETT  for  defendant  in  error: 

The  parties  agreed  to  submit  their  matters  of  difference  to  arbi- 
tration, but  provided  that  the  arbitrators  should  proceed  according 
to  certain  by-laws,  rules  and  regulations.  The  arbitrators  have 
no  authority  except  what  is  given  them  by  the  agreement  of  the 
parties.  This  they  must  fulfil,  and  not  stop  short  of  it.  To  make 
the  award  good,  every  material  matter  must  appear  affimatively  on 
its  face,  and  must  be  averred  in  the  declaration.  The  award  and 
declaration  are  bad  in  this  respect  for  deficiency. 

The  award  is  also  void,  because  the  arbitrators  exceeded  their 
authority.  They  had  no  power  to  award  costs  against  Bracken. 
They  had  no  power  to  award  that  Bracken  should  pay  the  money 
to  Gear  in  Galena  within  fifteen  days  with  interest.  They  had 
no  power  to  award  that  each  party  should  execute  to  the  other  a 
release  of  all  manner  of  demands  to  the  date  of  the  award.  No- 
thing was  submitted  to  the  aroitrators  but  the  matters  in  dispute. 
There  may  have  been  demands  on  one  side  or  the  other,  not  at  all 
in  dispute,  and  which  were  not  laid  before  the  arbitrators,  yet  they 
say  they  shall  all  be  released.  Such  excess  of  authority  cannot 
bo  sustained.  See  Kidd  on  Awards,  140,  279.  1  Bacon's  Abr, 
Title,  Arbitrament,  and  Award,  letter  E.  282. 

Opinion  of  the  court  by  Chief  Justice  DUNN: 

This  is  an  action  of  debt  upon  an  arbitration  bond,  brought  by 
the  plaintiff.  Gear,  against  the  defendant,  Bracken,  in  the  District 
Court  of  Iowa  county.  At  the  April  term,  1842,  the  defendant 
filed  his  general  demurrer  to  plaintiff's  declaration,  afier  oyer 
craved,  and  setting  out  the  agreement  to  submit  to  arbitration, 
bond,  and  award;  which  demurrer  was  sustained  by  the  Court,  and 
judgment  entered  fur  the  defendant.  To  the  decision  of  llie  Dis- 
trict Court  sustaining  the  demurrer,  the  plaintiff  excepts,  and  pro- 
secutes this  writ  of  error  to  reverse  the  decision. 

From  an  inspection  of  the  record,  it  is  apparent  that  the  plain- 
tiff's declaration  is  juslly  obnoxious  to  this  objection:  a  material 
averment  is  wanting,  that  the  arbitration  was  had,  and  the  award 
made,  according  to  the  rules  and  regulations  established  by  the 
by-laws  of  the  Galena  Chamber  of  Commerce.  The  award  is  liable 
to  these  objections :  it  does  not  show  upon  its  face,  that  the  arbitra- 
tion was  conducted  and  the  award  made  agreeably  to  said  rules  and 


REPORTS.  91 

regulations.  It  exceeds  the  powers  given  by  the  submission,  in 
awarding  that  upon  the  payment  by  Bracken  to  Gear  of  the  sum 
awarded,  (hat  each  should  execute  to  the  other  a  general  release 
in  writing  of  all  manner  of  demands  whatever  to  the  date  of  the 
award;  in  awarding  cosls  against  Bracken;  and  in  awarding  that 
payment  should  be  made  by  Bracken  to  Gear  of  the  sum  award- 
ed wiiliin  fifteen  days  after  the  date  of  the  award. 

There  is  no  principle  of  pleading  better  settled  than  that  a 
plaintiff  is  required  to  set  out  in  his  declaration  every  matter 
material  to  show  his  right  of  aciion,  with  sufficient  legal  certain- 
ty. In  this  case,  the  committee  of  awards  of  the  Galena  Cham- 
ber of  Commerce,  derive  their  sole  power  to  arbitrate  in  the  pre- 
mises from  the  agreement  between  Gear  and  Bracken  to  submit 
the  matters  in  dispute  to  their  award  and  decision.  They  must 
conform  in  every  respect  to  the  agreement,  and  cannot  exceed 
the  powers  conferred,  or  award  less,  or  stop  short  of  the  matters 
.submitted.  Then  it  is  material  that  the  declaration  should  aver 
lhat  the  said  committee  did  arbitrate  and  award  on  the  matters 
submitted,  according  to  the  rules  and  regulations  of  the  said  cham- 
ber of  commerce,  as  prescribed  in  their  by-laws,  this  being  a  sub- 
stantive part  of  the  agreement  of  submission  The  objections  to 
the  award  are  well  founded;  it  must  show  that  the  said  commit- 
tee of  awards  arbitrated  and  awarded  agreeably  to  the  rules  and 
regulations  of  the  said  chamber,  as  prescribed  in  their  by-laws. 
To  award  generally  that  the  arbitration  and  award  was  "  in  proper 
manner  and  form,"  is  not  sufficient.  It  exceeds  the  authority  and 
power  conferred  by  the  agreement  to  submit,  in  awarding  that  the 
said  Gear  and  Bracken,  upon  payment  by  Bracken  to  Gear  of  the 
sum  awarded,  should  each  execute  to  the  other  a  general  release 
of  all  demands  whatever  to  the  date  of  the  award.  The  matters 
submitted  were  the  maUers  in  dispute;  this  part  of  the  award  is 
so  comprehensive  as  to  embrace  all  matters  of  demand,  even 
those  not  in  dispute.  It  goes  beyond  the  powers  conferred  in 
awarding  costs  against  Bracken,  and  payment  by  him  of  the  sum 
awarded  to  Gear,  in  fifteen  days  from  the  date  of  the  award.  The 
authorities  on  these  points  are  full  in  1  Chitt'y  Plead,  and  Kidd 
on  Awards. 

We  are  therefore  unanimously  of  opinion  that  the  judgment  of 
the  District  Court  of  Iowa  be  affirmed,  with  costs. 

MOSES  M.  STRONG,  for  pl'fT  in  error. 

DUNN  and  BURNETT  for  deft  in  error. 


92  REPORTS. 


JOHN^GALE,  JR.,  appellant,         j  Appeal  Jroma  decree  of  the  Milwaukee 
ALONZO  R.  CUTLER,  appellee, 


District  Court. 
ei  5 


EVERY  bill  in  equity  must  contain  in  itself  sufficient  matter  of  fact,  to 
maintain  the  cause  of  the  complainant,  so  that  the  same  may  he  put  in  is- 
sue by  the  answer,  and  established  by  proof. 

The  prools  must  correspond  with  the  n'lc.rations  of  »he  parties,  and  if 
they  go  to  matters  not  within  the  allegations,  the  court  cannot  act  judi- 
cially upon  them  as  the  ground  for  its  decision. 

Whether  a  bill  contains  ground  for  relief,  or  any  equity,  is  a  question  of 
merits;  the  inquiry  is,  has  the  complainant  averred  any  matter  which,  if 
true,  entitles  him  to  the  relief  prayed  for,  or  any  relief;  or  set  it  forth  in 
the  manner  required  by  the  rules  of  equity?  If  the  bill  contains  no  equity, 
or  sets  ii  out  defectively,  it  is  pood  cause  for  a  general  demurrer. 

Where  a  complainant  seeks  relief  ajrainst  a  contract,  under  the  act  of 
Congress  of  the  3  Is;  March,  1830.  for  the  relief  of  the  purch  asers  of  the  pub- 
lic lands,  and  for  the  suppression  of  fraudulent  practices  nt  the  public 
sales  of  the  lands  of  the  United  States ;  the  bill  must  alledge  and  show,  that 
the  contract  sought  to  be  rescinded  is  within  the  statute,  and  that  the  com- 
plainant has  no  legal  evidence  of  the  contract,  to  entitle  him  to  relief  in 
equity. 

If  a  mortsrnjee  is  about  to  foreclose  a  mortgage  by  advertising  and  sel- 
ling the  premises,  rx  court  of  chancery  will  not  enjoin  him  or  interfere^  un- 
til the  mortgagor  first  does  equity  on  his  part. 

Gale  filed  a  bill  in  chancery  against  Cutler,  in  the  Milwaukee 
District  Court,  setting  forth — 

That  on  or  about  the  10th  March,  1838,  Cutler  was  in  posses- 
sion of  the  X.  E.  fract'l  qr.  of  sec.  3,  T.  6,  R.  19,  in  Milwaukee 
county,  then  the  property  of  the  U.  S.,  and  in  expectation  that  it 
would  be  shortly  sold  at  public  sble,  agreed  in  writing  with  Gale 
to  convey  to  him  by  deed,  the  said  land,  whenever  it  could  be  pur- 
chased, upon  the  express  understanding  and  condition  that  Gale 
should  pay  to  him  83000,  or  secure  the  same  by  mortgage  on  the 
premises  after  the  conveyance;  which  agreement  is  charged  tu  be 
in  the  possession  of  Cutler. 

On  the  execution  of  the  agreement,  Gale  paid  to  Cutler  $375; 
and  by  two  bonds,  bound  himself  to  pay  to  Cutler  $5025,  in  difc 
fercnt  instalments. 

Gale  immediately  entered  into  possession  of  the  premises,  and 
expended  for  himself  and  others  in  improvements  thereon,  before 
the  public  land  sales,  $20,000. 

At  the  land  ^ales,  Gnlc  was  ready  and  desirous  to  purchase  the 


REPORTS.  93 

land  in  his  own  name,  but  Cutler  refused  to  permit  him  to  do  so, 
and  threatened  to  bid  the  full  value  of  the  land  himself. 

On  the  16th  October,  1839,  the  day  previous  to  the  land  sale, 
Culler  executed  to  Gale  a  deed  for  the  premises,  and  at  the  same 
time  G:ile  executed  to  Cutler  his  note  for  $0000,  and  a  mortgage 
on  the  premises  to  secure  the  payment  according  to  the  aforesaid 
bonds  and  the  first  contract,  which  deed,  note,  aud  mortgage  were 
placed  in  the  hands  of  one  Cushrnan,  to  be  delivered  respectively 
to  the  parties,  when  CutJer  should  enter  the  premises  according 
to  the  first  agreement. 

On  the  17th  October,  1839,  Cutler  bought  the  land  at  public 
sale  for  81  25  per  acre,  and  on  the  same  day  Cutler  executed  to 
Gale  a  deed  for  the  land  for  (he  consideration  of  $5013  60,  reser- 
ving for  himself  one  village  lot,  and  Gale  gave  his  note  for  that 
sum,  pnyable  in  one  year  with  interest,  and  a  mortgage  on  the 
premises  to  secure  the  payment,  the  papers  placed  in  the  h'ands 
of  Cusliman  having  been  cancelled. 

The  bill  charges  that  Cutler  has  advertized  the  land  for  sale  by 
virtue  of  a  power  contained  in  the  mortgage  for  that  purpose,  and 
that  he  refuses  to  deliver  up  said  mortgage  and  note  to  be  cancel- 
led, as  he  ought  in  equity  lo  do. 

The  bill  prayed  for  an  injunction  against  Cutler  to  restrain  him 
from  foreclosing  the  mortgage,  and  a  decree  that  the  mortgage 
and  note  should  be-cancellcd  and  delivered  up,  and  that  Cutler 
should  pay  to  Gale  the  excess  already  paid  for  the  land  over  the 
sum  of  $1  25  per  acre. 

To  this  bill  Cutler  filed  a  general  demurrer,  which  the  District 
Court  sustained,  and  dismissed  the  bill  with  costs.  Gale  appeal- 
ed from  this  decision  to  the  Supreme  Court. 

WELLS,  for  appellant: 

The  District  Court  erred  in  dismissing  the  bill, because  it  shows 
a  case  strictly  within  the  act  of  Congress  providing  for  such  cases. 
See  act  of  31st  March,  1830,  4  Story,  2188,  sec.  3.  It  is  said 
that  the  court  cannot  give  relief  without  rescinding  the  contract 
in  toto,  and  decreeing  the  land  lo  Cutler,  on  the  principle  that  he 
who  asks  equity  must  do  equity.  But  this  bill  is  founded  upon  a 
positive  act  of  Congress,  and  only  ask  for  a  recision  of  the  unlaw- 
ful part  of  the  contract  according  to  the  provisions  of  the  act.  Un- 
der the  law  the  contract  is  good  for  $1  25  per  acre;  it  is  the  ex- 
cess that  is  made  void.  Equity  decisions  and  chancery  practice 


94  REPORTS. 

have  nothing  to  do  with  the  case.  The  bill  is  not  based  upon 
principles  of  equity,  but  on  a  positive  act  of  Congress  that  has  no 
equity  in  it.  The  law  stands  a  positive  act  of  legislation,  and  se- 
cures to  the  party  the  relief  prayed  for,  and  the  couitis  bound  to 
carry  the  law  into  effect. 

FIELD,  for  appellee: 

The  bill  docs  not  present  a  case  within  the  act  of  Congress. 
The  parties  made  and  modified  their  contract  several  times,  and 
the  one  sought  to  be  avoided  was  made  after  the  land  sa'e.  Be- 
sides, there  was  no  contract  fur  Gale  to  pay  any  excess  over  the 
sum  which  Cutler  should  have  to  pay  for  the  land;  he  was  to  pay 
a  sum  certain,  without  reference  to  what  the  land  should  cost 
Cutler.  The  case  is  not  one  provided  for  by  the  statute.  The 
act  relied  upon  is  a  rigid  law,  and  the  party  must  bring  himself 
clearly  within  its  provisions  before  the  court  will  disregard  the 
principles  ofjasiice  and  equity  to  grant  him  relief. 

Courts  of  equity  will  not  relieve  one  party  to  a  fraudulent  con- 
tract and  give  him  the  benefit  of  the  fraud.  The  deed  to  Gale 
for  the  land  is  a  part  of  the  same  contract;  and  if  any  part  is  void 
the  whole  is  void;  and  if  relief  is  granted,  the  parties  must  be  re- 
stored to  their  original  rights. 

To  authorize  a  court  of  equity  to  interfere  under  the  statute, 
the  complainant  must  show  in  his  bill  that  he  has  no  legal  evi- 
dence to  establish  tne  contract.  The  bill  before  the  court  does 
not  show  this;  it  only  leaves  the  court  to  infer  it,  which  the  court 
cannot  do.  But  from  the  bill  itself  it  appears,  that  there  is  evi- 
dence of  the  contract.  Then  it  is  a  case  for  a  court  of  law,  and 
not  of  equity  jurisdiction.  If  the  complainant  has  evidence  to 
prove  his  contract,  he  must  sue  at  law,  and  cannot  be  relieved  in 
equity;  3  Paige's  Chy.  Rep.  154. 

If  the  complainant  is  to  be  relieved  by  rescinding  the  contract, 
the  court  must  place  the  parties  in  statu  quo.  Fonbl.  Eq.  54;  2 
Story's  Kq.  6,  10. 

It  is  admitted  that  there  is  no  equity  in  the  bill  or  justice  in  the 
case,  but  rests,  it  is  said,  upon  positive  law.  Congress  and  other 
legislative  bodies  enact  laws  in  reference  to  the  principles  of  jus- 
tice and  equity,  and  if  the  appellant  is  without  equity,  his  case 
ought  to  be  dismissed  from  the  court. 

WHITOX,  ir.  continuation: 

The  bill  sets  out  u  contiact  fairly  made  without  any  allegation 


REPORTS.  95 

of  fraud,  and  asks  the  court  to  rescind  it,  only  so  far  as  the  recis- 
ion  will  be  for  the  benefit  of  ihe  appellant.  This  could  not  be  de- 
creed, even  if  the  case  was  brought  within  the  act  of  Congress. 
That  act  says  that  every  agreement  or  writing,  founded  on  such 
a  contract,  shall  be  void.  The  deed  to  Gale  for  the  land  is  a  part 
of  the  same  contract,  and  if  the  note  and  mortgage  are  void,  the 
deed  is  void  also. 

The  act  of  Congress  relied  upon,  is  in  derogation  of  the  com- 
mon law;  it  is  a  statute  of  pains  and  penalties,  and  must  receive 
a  strict  construction;  and  the  court  will  not  annul  a  contract  un- 
der it,  unless  it  comes  within  its  provisions  in  every  particular. 
The  contract  set  up  in  the  bill  is  not  within  it.  There  is  no  agree- 
ment that  Gale  should  pay  any  excess  over  what  the  land  should 
cost  Cutler.  By  the  first  agreement  Culler  was  bound  to  purchase 
the  land  at  the  land  sale,  and  he  might  have  had  to  pay  a  greater 
sum  than  he  was  to  receive  from  Gale.  His  getting  it  at  the  min- 
imum price  was  an  accidental  circumstance. 

But  the  contract  set  up  in  the  bill  and  sought  to  be  rescinded, 
was  made  after  Cutler  purchased  the  land,  and  the  act  of  Congress 
does  not  mention  any  such  case.  It  is  true,  that  the  first  contract 
is  stated  with  some  obscuriiy,  and  it  may  be  that  the  latter  was,  in 
some  degree,  founded  upon  it,  but  the  bill  shows  that  they  were 
essentially  different  from  each  other. 

ARNOLD,  in  conclusion: 

The  court  must  determine  this  case  upon  a  sound  construction 
of  the  act  of  Congress,  and  whatever  of  odium  may  be  attached  to 
the  appellant  for  seeking  relief  under  it,  if  he  brings  himself  with- 
in its  provisions  the  court  is  bound  to  give  him  the  benefit  of 
them. 

The  design  of  the  fourth  section  of  the  act  is  (o  prevent  fraudu- 
lent combinations  to  suppress  biddings  at  the  public  land  sales. 
The  fifth  section  is  to  make  void  any  contract  entered  into  for 
that  purpose,  and  not  that  only,  but  to  give  a  remedy  to  any  per- 
son who  may  be  oppressed  by  such  practices.  See  the  case  of 
Piatt  vs.  Oliver  and  others,  1  McLean's  Rep.  301. 

It  is  contended  by  the  appellee,  that  if  the  court  grar.ts  relief 
in  the  case,  the  whole  contract  must  be  rescinded  and  the  parties 
placed  in  statu  quo.  If  this  were  an  ordinary  case,  the  principles 
of  equity  would  so  apply;  but  it  is  a  peculiar  case,  brought  under 
a  particular  statute,  and  the  common  rules  of  equity  practice  do 


96  REPORTS. 

not  govern  it.  If  it  comes  within  the1  law,  a  part  of  the  contract 
may  be  rescinded  and  the  rest  remain  valid.  The  statute  only 
makes  void  all  contracts  to  pay  an  excess  over  what  the  land  costs 
the  purchaser  at  the  sale;  and  if  such  excess  has  been  paid,  gives 
the  party  a  right  to  recover  it  buck.  If  it  was  designed  to  rescind 
the  deed,  it  would  have  given  him  the  right  to  recover  tho  whole 
sum  paid.  By  this  construction  of  the  act  the  law  is  made  to  har- 
monize, and  its  beneficial  provisions  will  be  carried  into  effect. 

The  deed  and  mortgage  for  the  land  were  not,  as  has  been  said, 
a  new  contract,  made  after  the  purchase  of  the  land  by  Culler. 
The  bill  shows  that  they  were  made  in  pursuance  of,  and  founded 
upon  the  previous  contract  between  the  parties,  made  before  the 
land  sale. 

Opinion  of  the  Court,  by  Judge  MILLER: 

The  bill  of  complaint  of  John  Gale,  jr.  filed  in  this  case,  sets 
forth,  that  on  or  about  the  tenth  day  of  March,  1833,  Aionzo  R. 
Cutler,  this  defendant,  was  in  possi.-ssion  of  the  south-east  frao 
tional  quarter  of  section  three,  township  six,  of  range  nineteen,  in 
Milwaukee  county,  the  same  then  being  the  property  of  the  Uni- 
ted States.  In  the  expectation  and  belief  that  the  same  would 
shortly  thereafter  be  sold  by  the  United  States,  the  said  defendant 
entered  into  an  agreement,  in  writing,  with  complainant,  to  con- 
vey to  him  by  warrantee  deed,  the  said  premises,  when  the  same 
should  be  purchased  of  the  United  States;  upon  the  condition  that 
complainant  should  pay  to  him  the  sum  of  six  thousand  dollars, 
or  secure  the  payment  thereof  by  a  mortgage  of  the  premises,  af- 
ter the  same  should  have  been  conveyed  to  complainant  by  defend- 
ant. That  on  the  execution  of  said  agreement,  complainant  paid 
to  defendant  three  hundred  and  seventy-five  dollars,  and  gave  his 
bond  to  defendant  for  the  amount  of  five  thousand  six  hundred 
and  twenty-five  dollars,  and  immediately  received  from  said  de- 
fendant possession  of  the  premises,  which  he  continued  to  occupy 
and  hold  until  the  day  of  the  sale  thereof  by  the  government  and 
•ever  since,  and  for  hir.iself  and  others,  expended  twenty  thousand 
dollars  in  improving  said  premises.  At  the  time  of  (he  sale  of 
the  j-iid  premises  by  the  government,  complainant  was  ready,  wil- 
ling and  desirous  to  purchase  the  land  in  his  own  name,  but  said 
defendant  absolutely  n  fused  to  allow  him  to  do  so,  and  insisted 
on  buying  it  himself,  and  threatened  to  bid  against  complainant  at 
the  sale  to  the  full  value  of  the  property. 


REPORTS.  97 

On  the  sixteenth  day  of  October,  1839,  being  the  day  previous 
to  the  sale  of  said  premises  by  the  government,  at  the  Milwaukee 
land  office,  said  defendant  executed  to  complainant  a  warrantee 
deed  for  the  same,  which  was  lodged  in  the  hands  of  Peter  N. 
Cushman,  to  be  delivered  to  complainant,  after  defendant  should 
have  obtained  a  title  to  said  premises,  according  to  the  agreement 
of  the  tenth  of  March,  183S,  and  that,  at  the  same  time,  complain- 
ant executed  to  defendant  his  promissory  note  and  mortgage  of 
said  premises,  to  secure  the  payment  of  the  balance  of  said  pur- 
chase money  according  to  the  condition  of  the  bond  referred  to, 
and  agreeably  to,  and  in  pursuance  of  the  said  agreement;  which 
said  note  and  mortgage  were  placed  in  the  hands  of  said  Cush- 
man, to  be  delivered  to  said  defendant  whenever  complainant 
should  receive  from  said  Cushman  the  said  deed.  The  said  prem- 
ises were  sold  by  the  government  on  the  seventeenth  day  of  Oct. 
1839,  by  public  auction  at  the  Milwaukee  land  office,  and  were 
purchased  by  defendant,  who  paid  to  the  Receiver  at  said  office, 
therefor,  the  minimum  price  of  one  dollar  and  twenty-five  cents 
per  acre  therefor,  and  received  from  said  Receiver  a  duplicate  re- 
ceipt for  such  payment.  On  the  said  seventeenth  day  of  October, 
1839,  the  defendant  executed  and  delivered  to  complainant,  for 
the  consideration  of  six  thousand  and  thirteen  dollars  therein  ex- 
pressed, a  warrantee  deed  for  said  premises,  and  thereupon  the 
complainant  executed  and  delivered  to  defendant  his  promissory 
note  for  said  consideration,  payable  in  one  year  thereafter  with  in- 
terest, and  to  secure  the  payment  thereof,  executed  and  delivered 
to  defendant  a  mortgage  of  said  premises,  and  the  pa p/srs  placed 
in  the  hands  of  Cushman  were  cancelled.  The  defendant  had 
advertized  in  a  newspaper  printed  in  Milwaukee  county  the  said 
premises  for  sale  on  the  twenty-eighth  day  of  January,  1841,  by 
public  auction,  by  virtue  of  the  power  of  sale  contained  in  said 
last  mentioned  mortgage,  the  said  sum  of  money  secured  thereby 
not  having  been  paid.  The  bill  prajed  an  injunction  to  restrain 
said  sale,  and  also  prayed  for  a  decree,  that  the  overplus  paid  by 
complainant  over  and  above  the  price  of  the  land  at  the  rate  of  one 
dollar  and  twenty-five  cents  per  acre,  be  returned  to  the  com- 
plainant, and  that  said  last  mentioned  note  and  mortgage  be  can- 
celled. 

At  a  term  of  the  District  Court  for  Milwaukee  county,  in  June, 
1841,  the  defendant  demurred  to  the  said  bill,  on  which  issue  was 

13 


98  REPORTS. 

joined,  and  after  argument,  the  court  dismissed  the  bill;  from 
which  decree  the  complainant  nppealcd. 

Every  bill  must  contain  in  itself  sufficient  matter  of  fact,  per  se, 
to  maintain  the  case  of  the  complainant,  so  that  the  Fame  may  be 
put  in  issue  by  the  answer,  and  established  by  proofs.  The  proofs 
must  be  accor  ing  to  the  allegations  of  the  partie?,  and  if  the 
proofs  go  to  matters  not  within  the  allegations,  the  court  cannot 
judicially  act  upon  ihem  as  the  ground  for  its  decision;  9  Peters* 
483.  Whether  a  bill  in  equity  contains  any  grounds  for  relief,  or 
any  equity,  is  a  question  of  merits.  The  inquiry  is,  has  the  com- 
plainant averred  any  matter,  which  if  true,  entitles  him  to  th  •  re- 
lief prayed  for,  or  any  relief;  or  set  it  forth  in  the  manner  requir- 
ed by  the  rules  of  equity?  If  the  bill  contains  no  equity,  or  sets  it 
out  defectively,  it  is  a  good  cause  for  demurrer  generally.  The 
averments  in  this  bill  do  not  disclose  any  things  of  themselves,  to 
entitle  the  complainant  to  the  interposition  of  a  court  of  chancery. 
But  it  is  contended,  that  this  is  a  proper  case,  as  set  forth,  for  the 
action  of  the  court,  under  the  fifth  section  of  an  act  of  Congress, 
approved  March  thirty-first,  one  thousand  eight  hundred  and  thir- 
ty, entitled  "  an  act  for  the  relief  of  the  purchasers  of  the  public 
lands  and  for  the  suppression  of  fraudulent  practices  at  the  public 
sales  of  the  lands  of  the  United  Slates."  Whether  this  is  a  con- 
tract or  not.  in  violation  of  this  statute,  cannot  be  decided  on  this 
bill,  for  the  complainant  does  not  so  charge  it,  nor  does  he  even 
refer  to  it.  He  leaves  the  court  to  infer  from  his  bill  that  it  is  so, 
which  cannot  be  done,  for  a  court  of  chancery  does  not  act  upon 
inferences  or  uncertainties,  but  upon  allegations  and  facts.  By 
that  statute,  the  contracts  therein  referred  to,  are  void,  and  the  party 
aggrieved  may.  sue  in  any  court  having  jurisdiction;  and,  if  he  has 
no  legal  evidence  of  the  contract,  he  may,  by  bill  in  equity,  com- 
pel a  discovery  thereof;  and  if,  in  such  case,  the  complainant  shall 
ask  relief,  the  court,  in  which  the  bill  is  pending,  may  proceed  to 
final  decree  between  the  parties  to  the  same.  The  want  of  legal 
evidence  of  the  contract,  is  not  even  averred  in  this  bill.  It  is 
held  that  equity  will  not  enforce  a  discovery  that  is  to  lead  to  a 
forfeiture;  1  J.  C.  Rep.  30S;  ibid.  439;  2  Dossans,  341;  3  Har. 
&.  John.  185;  2  Dallas,  92;  12  Scrgl.  &  Rawle,  46.  Hence,  pos- 
sibly, the  cruise  of  this  provision  in  the  statute. 

Upon  gencia]  principles  of  equity,  if  a  parly  is  proceeding  in 
law  or  equity  to  colled  his  notes  and  mortgage  through  the  instru- 


REPORTS.  90 

mentality  of  the  court,  that  then,  on  the  proper  representation  and 
proof  of  the  facts,  the  court  will  give  him  relief  without  his  going 
further  on  his  part;  5  John.  C.  R.  136;  3  Bibb,  207;  4  Sergt.  &. 
Rawle,  151.  But  it  will  abundantly  appear  in  5  John.  C.  R.  49, 
136;  1  John.  C.  R.  368, 439;  that  if  a  party  is  proceeding  to  fore- 
close a  mortgage  by  advertisement,  a  court  of  chancery  will  not 
enjoin  him,  or  interfere,  until  the  grantor  first  does  equity  on  his 
part. 

The  judgment  of  the  District  Court  is  affirmed,  with  costs. 

WELLS  and  ARNOLD,  for  appellant. 

FIELD  and  WHITON,  for  appellee. 


HEZEK1AH  H.  GEAR,  appellant^  ^tal  from  a  decree  of  the  kva  D»- 
THOMAS  J.'  PARISH,  appellee,     \  tnct  Court' 

AN  answer  in  chancery,  directly  denyingthe  matters  charged  in  the  bill, 
as  within  the  knowledge  of  the  defendant,  will  prevail  against  the  bill,  un- 
less the  answer  is  contradicted  by  two  witnesses,  or  by  one  witness  and 
corroborating  circumstances. 

If  the  defendant  sets  up  new  matter  in  his  answer,  not  in  response  to  any 
of  the  charges  in  the  bill,  it  must  be  supported  by  .testimony  ali  unde,  or  it 
cannot  avail  him  in  his  defence. 

If  the  defendant  discredits  his  own  answer  by  contradictory,  unreasona- 
ble, or  irreconcilcable  statements,  or  by  statements  contradicted  by  writ- 
ten instruments  on  the  same  point,  or  by  positive  denials  of  charges  of 
which  he  could  have  no  personal  knowledge,  then  the  testimony  of  one 
disinterested  witness  will  sustain  the  bill  against  the  answer. 

Parish  filed  a  bill  in  chancery  against  Gear  in  the  Iowa  District 
Court,  nlledging — 

That  in  April,  1836,  Gear  called  on  him  fora  settlement  of  his 
account,  and  produced  his  books,  which  showed  an  indebtedness 
on  the  part  of  Parish  of  $3,700  00,  and  it  was  agreed  that  Parish 
should  secure  this  sum  by  a  mortgage  on  sundry  tracts  of  land  in 
Iowa  county,  payable  in  four  months.  After  this  was  agreed  up- 
on, Gear  staled  that  there  were  some  other  demands  for  brick  and 
freights  that  were  not  taken  into  the  account,  which  amounted  to 


100  REPORTS. 

about  $300  00,  making  in  the  whole  about  $4,000  00,  which  would 
be  the  full  sum  of  Parish's  indebtedness.  By  agreement  of  the 
parties,  a  bond  and  mortgnge  were  executed  by  Parish  to  secure 
the  sum  of  §4,200  00,  which  Gear  admitted  would  cover  all  con- 
tingencies, payable  in  four  months.  When  the  mortgage  became 
due,  William  S.  Hamilton  paid  for  Parish  the  amount  thereof, 
and  $84  00  for  interest,  making  in  all  $4,284  00,  and  took  Gear's 
receipt;  and  that  since  that  period  no  dealings  whaleverhave  been 
had  between  the  parties. 

After  this,  in  October,  1837,  Gear  sent  to  Parish  an  additional 
demand  of  $1562  38,  as  a  balance  of  accounts,  for  which  he  de- 
manded payment,  and  on  which  he  brought  suit  in  the  Iowa  Dis- 
trict Court,  still  holding  said  bond  and  mortgage  and  refusing 
either  to  deliver  them  up  or  release  the  property,  although  they 
had  been  fully  paid  and  discharged.  Parish  always  denied  the 
justness  of  the  additional  claim  or  balance  demanded  of  him,  but 
having  sold  a  part  of  the  land  included  in  the  mortgage  io  which 
he  was  anxious  to  make  a  good  title,  (having  received  part  of  the 
purchase  money,)  which  he  could  not  do  while  Gear  held  an  out- 
standing mortgage  that  he  would  not  release,  and  being  pressed, 
he  finally  consented  to  confess  judgment  for  the  amount  of  the  claim 
in  suit,  which  he  did,  with  the  express  agreement  with  Gear's  at- 
torney that  the  bond  and  mortgage  should  be  given  up,  and  all 
mistakes  in  the  account  corrected,  and  a  stay  of  execution  on  the 
judgment  was  agreed  upon  and  entered. 

After  the  stay  had  expired,  Gear  pressed  Parish  with  an  execu- 
tion and  was  about  to  sell  his  property,  and  still  held  the  bond  and 
mortgnge  as  a  security  for  the  judgment  and  refused  to  deliver 
them  up. 

The  bill  charged  that  the  judgment  was  fraudulently  obtained; 
that  it  was  unjust;  that  the  sum  was  included  in  the  mortgage 
which  had  been  paid;  and  prayed  for  a  perpetual  injunction  against 
the  judgment,  and  a  decree  that  the  bond  and  mortgage  should 
be  delivered  up  and  cancelled. 

The  answer  of  Gear,  admits  the  execution  of  the  mortgage,  the 
payment  of  the  money  by  Hamilton  and  his  receipt,  but  denies  a 
setilcment  of  accounts  or  that  the  mortgnge  was  for  the  whole 
debt  due  him  at  the  time,  and  states  that  Parish  then  owed  him 
about  $5,700  00.  He  states  that  the  mortgage  was  given  to  se- 
cure the  sum  of  $4,200  00,  and  such  other  sums  as  Parish  owed 


REPORTS.  101 

himj  that  the  mortgage  was  not  acknowledged  or  recorded,  and 
that  the  mortgage  and  bond  were  mislaid  and  could  not  be  found: 
admits  that  Ihe  money  ($4,200  00)  was  paid  lo  him  by  Hamilton, 
1st  August,  1836,  but  denies  that  said  sum  was  paid  or  received 
as  payment  of  the  mortgage,  and  states  that,  on  the  contrary,  there 
was  still  due  from  Parish  over  $1500  00:  denies  that  he  refused 
to  deliver  up  the  rnorignge;  admits  that  J.  P.  Hoge,  his  attorney, 
called  on  Parish  for  the  balance  due  of  $1562  38,  and  that  Parish 
confessed  judgment  for  that  sum,  but  denies  that  the  judgment 
was  obtained  by  any  fraud  of  either  Hoge  or  himself:  is  informed 
and  believes  that  Hoge  agreed  with  Parish  that  the  mortgage 
should  be  delivered  up  and  cancelled,  and  he  has  been  ready  and 
willing  that  it  should  be  done,  but  told  Hoge  that  he  thought  the 
mortgage  ought  not  to  be  given  up  until  the  money  was  paid :  de- 
nies that  the  agreement  with  Hoge  was  the  consideration  that  in- 
duced Parish  to  confess  tho  judgment,  but  says  that  the  only  in- 
ducement was  because  the  debt  was  just. 

He  slates  that  on  or  about  the  1st  of  February,  1839,  he  agreed 
to  execute  a  deed  of  release  for  the  mortgaged  premises  to  Parish, 
and  thereupon  Parish's  attorney  drew  a  deed  which  he  executed, 
and  about  the  same  time  Parish  paid  him  $25000:  denies  all 
fraud,  &c.,  generally. 

The  mortgage  mentioned  in  the  bill  and  answer,  and  the  bond, 
were  produced  by  Gear  on  the  trial  in  the  District  Court:  the 
bond  was  for  $5000,  conditioned  for  the  payment  of  $4200. 
which  was  the  amount  of  the  mortgage.  The  mortgage  was  to 
secure  that  sum  alone,  and  nothing  further,  and  was  acknowledg- 
ed before  and  certified  by  a  notary  public,  but  not  recorded. 

The  only  depositions  taker,  in  the  cause,  and  read  upon  the 
trial,  were  those  of  William  S.  Hamilton  and  John  Turney.  The 
deposition  of  Hamilton  proved:  That  in  the  spring  of  the  year 
1836,  he  was  present  at  the  closing  up  of  the  business  of  com- 
plainant and  defendant,  which  was  done  at  his  suggestion,  at 
which  time  Gear  presented  to  Parish  his  book,  showing  Parish's 
indebtedness  to  be  about  $3,700,  but  Gear  alledged  that  there 
were  other  charges  for  freight  on  furnace  irons,  brick,  and  perhaps 
some  other  small  matters,  and  the  parties  agreed  that  the  witness 
should  draw  a  mortgage  to  secure  the  debt,  Gear  stating  that  the 
addition  of  $300  would  cover  all  claims  against  Parish  not  men- 
tioned in  the  books.  The  mortgage  was  drawn  and  executed  by 


102  REPORTS. 

Parish  to  Gear  for  the  sum  of  $4,200,  which  was  considered  by 
all  parties  as  sufficient  to  cover  all  claims  from  Parish  by  Gear. 
On  the  1st  August,  1836,  witness  paid  to  Gear,  for  Parish,  $4,284 
and  asked  Gear  for  the  mortgage,  which  he  declined  giving  up, 
stating  that  the  sum  paid  did  not  cover  the  account  of  Parish.  At 
the  time  when  the  mortgage  was  given,  it  was  supposed  that  it 
would  cover  the  whole  amount  due  from  Parish  to  Gear,  but  it 
was  agreed  that  the  balance  that  might  be  found  to  be  due  from 
either  party  should  be  adjusted. 

The  deposition  of  Turney  proved:  That  after  Gear  had  sued 
Parish,  he,  Parish,  consulted  the  witness  upon  the  expediency  of 
confessing  judgment,  and  expressed  great  anxiuty  to  get  his  pro- 
perty unencumbered  for  the  purpose  of  making  good  conveyances: 
That  he,  the  witness,  had  a  conversation  with  J.  P.  Hoge,  attor- 
ney for  Gear,  in  which  said  Hoge  pledged  himself  that  the  mort- 
gage should  be  given  up,  and  cancelled,  and  any  error  in  the  ac- 
counts between  the  parties  should  be  corrected.  That  the  sole 
object  of  Parish  in  confessing  judgment  was  to  get  the  mortgage 
returned,  and  upon  the  promises  of  Hoge  he  advised  Parish  to  con- 
fess judgment. 

The  District  Court  decreed  a  perpetual  injunction  of  the  judg- 
ment at  law,  from  which  decree  Gear  appealed  to  this  court. 

MOSES  M.  STRONG,  for  appellant: 

From  the  facts  in  this  case,  the  District  Court  ought  not  to 
have  gone  further  than  to  cancel  the  mortgage,-  and  the  injunc- 
tion against  the  judgment  at  law  ought  to  have  been  dissolved. 
The  answer  of  the  defendant  denies  all  the  equity  of  the  bill. 
According  to  all  rules  of  chancery  practice,  the  answer  cannot  be 
defeated  unless  it  is  contradicted  by  two  witnesses,  or  by  one  wit- 
ness and  strong  corroborating  circumstances.  There  is  no  part 
of  the  bill  to  which  more  than  one  witness  testifies,  and  there  are 
no  corroborating  circumstances  to  make  the  testimony  preponder- 
ate over  the  answer.  The  statements  in  the  answer  as  to  the  set- 
tlement of  the  accounts  and  execution  of  the  mortgage  are  not 
even  contradicted  by  one  witness,  and  the  answer  on  this  point 
must  prevail. 

The  defendant  is  called  upon  by  the  complainant  to  answer  un- 
der oath.  The  complainant  makes  him  his  witness  in  the  cause; 
and  although  he  may,  as  in  other  cases,  prove  by  other  witnesses, 
that  the  fcicts  are  different  from  what  the  defendant  has  stated  them 


REPORTS.  103 

to  be,  yet  he  cannot  discredit  his  testimony,  because  he  is  his  wit- 
ness. 

The  withholding  the  mortgage  by  Gear,  (and  that  is  sufficiently 
explained  in  the  answer,)  could  he  no  sufficient  cause  for  enjoin- 
ing the  judgment.  It  had  never  been  recorded,  and  was  no  lien 
upon  the  land,  nnd  could  not  produce  any  of  the  difficulties  which 
Parish  seemed  to  fear. 

The  complainant  has  not  shown  himself  entitled  to  any  relief 
as  to  the  judgment;  but  if  the  court  can,  upon  the  facts  of  the 
case,  inteifere  with  that  judgment,  the  most  that  it  can  do  will  be 
to  vacate  it,  and  permit  the  parties  again  to  litigate  iheir  rights  in 
a  court  of  law,  and  this  will  be  stretching  the  matter  to  the  utmost 
verge  of  authority. 

BURNETT,  for  appellee : 

Too  much  consequence  seems  to  be  given  to  the  answer  of  a 
defendant  in  chancery.  Although,  as  a  general  principle,  the 
rule  is  admitted  as  it  has  been  stated,  yet  it  is  not  without  excep- 
tions. If  the  defendant  states  in  his  answer  any  matters  that  are 
not  in  response  to  the  bill,  it  cannot  avail  him,  but  must  be  sup- 
ported by  testimony  ali  unde.  If  the  defendant  makes  contradict- 
ory or  unreasonable  statements;  or  answers  positively  in  relation 
to  facts  not  within  his  own  knowledge,  and  of  which  he  could  not 
possibly  know  with  certainty;  or  if  his  statements  are  contradicted 
by  written  documents  that  cannot  be  doubted;  the  court  will  con- 
sider these  circumstances  as  detracting  from  the  weight  of  the  an- 
swer; and  the  court  may,  if  the  facts  warrant  it,  consider  the  an- 
swer as  discredited  entirely  in  the  case.  This  principle  is  fully 
established  in  the  following  cases:  Hart  vs.  Teneyck  and  others, 
2  John.  Chy.  Rep.  62,  and  the  authorities  collected  in  note  (a)  at 
page  90.  Mitchell  vs.  Maussin,  3  Monroe,  185.  Whitington  vs. 
Roberts,  4  do.  173.  Young  vs.  Hopkins  and  others,  6  do.  18; 
Paynes  vs.  Colts  and  others,  1  Mun ford,  373.  In  applying  the" 
principle  to  this  case,  it  will  be  found  that  the  appellant  has  in 
his  answer  denied  positively- the  circumstances  and  reasons,  and 
the  conditions  for  confessing  the  judgment,  as  charged  in  the 
bill,  when  he  could  not  possibly  know  any  thing  about  it  except 
from  information  He  states  that  the  mortgage  was  never  ac- 
knowledged or  recorded,  and  yet  the  document  itself,  which  had 
always  been  in  his  possession,  shows  that  it  was  acknowledged 
and  certified  at  the  time  when  it  was  executed.  That  part  of  the 


104  REPORTS. 

answer  in  relation  to  the  execution  of  the  mortgage  is  so  unrea- 
sonable in  itself,  and  so  contrary  to  the  course  of  business  with  all 
merchants  of  any  discretion  or  prudence,  that  it  is  out  of  the  pale 
of  belief.  He  does  not  deny  any  of  the  material  allegations  of 
the  bill  upon  that  subject,  except  those  in  relation  to  the  purposes 
for  which  the  mortgage  svas  given  and  the  amount  of  the  account, 
which  he  says  was  at  that  time  about  $5,700.  and  that  the  mort- 
gage was  given  to  secure  the  sum  of  $4,200,  and  such  other 
sums  as  Parish  owed  him.  The  mortgage  and  bond  both  show 
for  themselves  that  $4,200  is  all  that  could  be  collected  upon 
them,  and  that  they  were  given  for  nothing  else.  The  facts  in  the 
transaction  that  cannot  be  doubted  show,  that,  at  the  time,  Parish 
was  willing  to  give  a  mortgage  for  the  whole  sum  which  he  justly 
owed,  and  that  in  this  spirit  the  mortgage  was  raised  from  $3,700 
to  $4,200.  What  discreet  business  man  is  there,  who,  under 
such  circumstances,  seeking  security  for  his  debts,  when  he  had 
an  opportunity  of  getting  it,  would  leave  out  so  large  an  amount 
as  fifteen  hundred  dollars  and  upwards?  There  is  none,  and  the 
statement  is  too  unreasonable  to  obtain  belief.  I  think  then  that 
the  court  will  disregard  the  answer  entirely,  and  consider  the  case 
upon  the  bill  and  evidence  alone;  and  under  such  circumstances^ 
the  fact  of  the  bill  being  sworn  to  is  entitled  to  some  weight. 

It  is  said  that  the  mortgage,  not  being  recorded,  was  no  lien 
on  the  land,  and  that  the  failure  or  refusal  to  cancel  it,  was  no 
disadvantage  to  Parish.  Although  not  recorded,  it  was  acknow- 
ledged and  certified,  and  could  be  placed  upon  record  any  min- 
ute, as  much  to  the  prejudice  of  Parish  as  if  it  had  been  recorded 
in  the  first  instance. 

The  materialallegations  of  the  bill  are  sufficiently  supported  by 
the  depositions  and  documentary  evidence;  and  an  important  cir- 
cumstance in  the  case,  which  the  court  will  not  overlook  is,  in  all 
this  contest,  Gear  has  never  produced  his  books,  or  attempted  to 
show,  in  any  way  whatever,  how  or  why,  this  enormous  excess  was 
not  taken  into  the  account  when  the  mortgage  was  given,  nor  stated 
his  account  to  show  that  the  whole  sum  claimed  was  justly  due,* 

Opinion  of  the  Court  by  Chief  Justice  DUNN: 


Mr.  Dcxv  presented  a  written  argument  in  the  case,  which  was  handed 
to  the  court.  Not  having  seen  it  since,  and  taking  DO  notes  of  it  at  the 
time,  it  cannot  be  giveu  here. — [Rep. 


REPORTS.  105 

This  is  an  appeal  trom  a  decree  of  the  District  Coort  of  Iowa 
County,  sitting  as  a  court  of  chancery. 

A  bill  of  complaint  was  exhibited  in  said  comtby  the  appellee, 
Parish,  against  the  appellant,  Gear,  setting  up  that  the  said  Gear, 
by  his  attorney,  had  fraudulently  obtained,  on  the  law  side  of  said 
court,  a  confession  of  judgment  against  him  on  false  promises  and 
representations,  for  the  sum  of  $1,562  58,  on  an  account,  or  the 
balance  of  an  account,  which  had  been  settled  with,  and  Secured 
to,  said  Gear,  by  a  bond  and  mortgage  executed  to  him  by  Parish  in 
April,  1836,  more  than  a  year  before  the  confession,  and  thai  he 
has  had  no  dealings  wilh  Gear  since,  and  calls  on  him  to  answer  if 
he  has;  which  mortgage  was  discharged  and  paid  off  by  Parish  to 
Gear  about  four  months  after  date,  being  the  time  the  money  se- 
cured by  said  morigage  became  due,  when  said  Gear,  on  demand, 
refused  to  give  up  said  mortgage,  as  he  should  have  done. 

That  in  October,  1837,  to  obtain  said  confession,  Joseph  P. 
Hoge,  said  attorney  for  Gear,  promised  said  Parish,  if  he  would 
confess  judgment  for  the  said  $1,562  58,  the  balance  of  the  ac- 
count claimed,  that  Gear  would  immediately  surrender  the  mort- 
gage to  be  cancelled;  and  that  owing  to  the  peculiar  situation  of 
him,  the  said  Parish,  at  the  time,  in  relaiion  to  some  of  the  mort- 
gaged lands,  he  having  sold  the  same,  received  a  part  of  the  pur- 
chase money,  and  being  bound  to  make  conveyance,  did  consent 
to  confess  judgment  as  aforesaid,  not  admitting  that  any  balance 
was  due  Gear,  but  influenced  solely  by  the  great  desire  he  had  ta 
secure  that  to  which  in  law  and  equity  he  was  justly  entitled,  the 
surrender  to  him  of  the  mortgage,  that  he  might  convey,  as  he  was 
bound  to  do,  by  good  and  sufficient  deeds  or  conveyances.  That 
said  Gear  falsely,  fraudulently,  and  improperly  refused  to  deliver 
up  said  mortgage  in  pursuance  of  said  promise  so  by  his  attorney 
made,  and  insisted  on  by  Parish  in  good  faith;  and  said  bill  con* 
eludes  with  a  prayer  for  an  injunction  against  said  judgment  at 
law,  and  that,  upon  the  final  hearing,  the  said  court  of  chancery 
may  decree  a  perpetual  injunction  against  said  judgment  at  law, 
or  decree  to  said  Gear  so  much  as  upon  proper  proof  may  be  just- 
ly due  to  him,  or  such  other  relief  as  to  equity  may  appertain.  On 
this  bill  injunction  was  awarded  by  the  Chancellor. 

The  defendant,  Gear,  in  his  answer,  denies  that  their  full  ac- 
counts were  settled  in  1836,  and  a  mortgage  given  to  secure 
$4,200  only,  as  the  entire  amount  due  him  at  the  time,  and  al- 

14 


106  REPORTS. 

ledges  that  it  was  not  only  given  to  secure  said  four  thousand  two 
hundred  dollars,  but  such  oilier  sum  as  might  be  due  from  Parish 
to  him,  and  tint  he  has  found  since  said  mortgage  was  given,  that 
said  Parish  owed  him  $5,700.  That  the  mortgage  was  given,  but 
never  acknowledged  and  recorded;  that  the  $4,203  were  paid  to 
him  by  Parish's  agent,  which  he  applied  to  the  credit  of  Parish's 
account.  He  denies  that  said  $4,200  was  received  in  full  satis- 
faction of  said  mortgage  or  of  the  debt  due  by  Parish  to  him,  but 
that  there  wasa  balance  then  due  of  more  than  $1,500.  He  ad- 
mits that  his  attorney,  Jos.  P.  Hoge  Esq.  called  on  Parish  in  Ocio- 
ber,  1837,  for  a  balance  of  $1,502  58,  and  that  Parish  confessed 
judgment  for  that  sum  at  the  lime  set  forth;  but  denies  that  it 
was  in  any  wise  obtained  by  fraud,  either  on  his  part  or  on  the  part 
of  his  attorney,  Jos.  P.  Hoge,  Esq.  but  was  the  free  and  voluntary 
act  of  Parish.  He  admits  that  he  is  informed  and  believes  that 
his  attorney  consented  that  said  mortgage  should  be  surrendered 
up  to  be  cancelled,  and  avers  that  he  has  ever  been  ready  and 
willing,  although  he  told  his  said  attorney  that  he  did  not  think 
the  mortgage  should  be  surrendered  until  the  debt  was  paid,  and 
that  he  has  never  since  been  able  to  find  said  mortgage.  He  de- 
nies that  the  agreement  with  his  said  attorney,  Hoge,  was  the  con- 
sideration that  induced  Parish  to  confess  judgment,  but  insists  that 
it  was  because  he  believed  the  debt  to  be  an  honest  debt,  and  that 
a  stay  of  execution  for  six  months  was  agreed. 

The  defendant  then  set  up  new  matter,  riot  responsive  to  any 
of  the  charges  in  the  bill. 

Upon  this  bill  and  answer  and  replication,  the  mortgage  and 
bond  of  Parish  to  pay  the  $4200,  receipt  of  payment  by  Parish, 
and  the  depositions  of  Turney  and  Hamilton,  taken  on  the  part  of 
complainant,  Parish,  this  cause  came  on  to  be  heard  in  the  Dis- 
trict Court  of  Iowa,  sitting  as  a  court  of  chancery,  and  upon  hear- 
ing, the  court  decreed  a  perpetual  injunction  against  the  judgment 
at  law  in  favor  of  said  Gear  against  said  Parish. 

It  becomes  the  duty  of  this  court  to  review  the  cause,  and  af- 
firm or  reverse  the  decree  of  the  District  Court. 

The  principle  so  long  recognized  in  equity  proceedings,  that 
fraud  in  the  procurement  will  taint,  cancel,  and  destroy,  the  obli- 
gatory effect  of  all  parol  contracts,  deeds,  and  even  judgments,  is 
too  well  established  to  admit  of  discussion  upon  the  soundness  of 
the  doctrine  at  this  day.  The  primary  object  of  thecomplainant's 


REPORTS,  107 

bill  in  this  cause  is,  to  avoid  the  effect  of  the  judgment  at  law 
against  him,  by  showing  fraud  in  its  procurement.  A  court  of 
equity  is  the  only  place  where  he  can  be  relieved.  There  is  not, 
apparent  on  the  record  of  the  confession  of  (he  judgment  at  law, 
any  error  in  law;  if  there  were,  confession  takes  a  way  error.  The 
door  of  the  courts  of  law  is  barred  against  him,  on  account  of  the 
rigid  and  unrelaxing  rules  which  govern  in  cases  at  law.  The 
charge  of  fraud  in  this  case  gives  jurisdiction  to  the  court  of  equity, 
and  when  parties  are  properly  in  this  court,  it  may  decree  finally 
on  all  the  matters  connected  with  the  subject  matter  of  the  fraud 
charged.  This,  then,  presents  the  relief  prayed  for  secondly,  the 
surrender  and  cancellation  of  the. mortgage,  and  Gear's  right  tore- 
cover  for  a  balance  on  an  account  settled  and  closed  by  the  bond 
and  mortgage.  We  must  test  the  truth  of  the  allegations  of  com- 
plainant's bill  by  the  evidence  in  the  case,  and  this  consists  of  the 
defendant's  answer  to  the  matters  charged  in  the  bill,  as  of  his 
own  knowledge,  the  written  instruments  filed  in  the  cause,  and 
the  depositions  taken  and  read  below.  The  defendant's  direct 
answer,  as  of  his  own  knowledge,  is  properevidence,  and  must  be 
weighed  and  considered,  unless  contradicted  by  two  witnesses,  or 
one  with  corroborating  circumstances.  If  a  defendant  sets  up 
new  matter,  not  in  answer  to  any  of  the  charges  in  the  bill,  it  must 
be  supported  by  testimony  all  wide,  or  it  cannot  avail  him  in  his 
defence,  but  may  prejudice,  from  the  appearance  it  bears,  of  an  at- 
tempt to  equivocate,  by  leading  ofT  from  the  gist  of  the  matters  ho 
should  answer.  If  it  appears  from  the  answer  of  a  defendant,  that 
he  discredits  his  answer  by  contradictory,  unreasonable,  irrecon- 
cileable  statements,  or  by  statements  contradicted  by  written  in- 
struments on  the  same  point,  or  by  positive  denials  of  charges  of 
which  he  could  have  no  personal  knowledge,  then  the  testimony 
of  one  disinterested  witness  would  preponderate  over  the  weight 
of  testimony  contained  in  his  answer,  and  against  the  answer. 
These  principles  are  recognized  in  Mitchell  vs.  Maussin,  3  Mon- 
roe, 185.  Whitington  vs.  Roberts,  4  Monroe,  173.  Young  vs. 
Hopkins  and  others,  0  Monroe,  18.  Pjynesvs.  Coles  and  others, 
1  Munford,  373.  Hart  vs.  Tencyck  and  others,  1  John.  Chy. 
Rep.  62,  and  authorities  referred  to  in  note  (a)  page  90.  Under 
these  rules,  a  majority  of  this  court  have  considered  the  defend- 
ant's answer  herein,  which  is  all  the  evidence  in  his  favor  in  this 
cause,  and  have  opposed  thereto  the  depositions  of  Turney  and 


108  REPORTS. 

Hamilton,  disinterested  witnesses,  and  the  mortgage  and  bond  re- 
ferred to,  placed  on  the  files  with  the  papers  in  this  cause  by  de- 
fendant on  the  hearing,  and  receipt  of  payment,  and  are  of  opinion 
that  the  charges  of  the  complainant,  in  his  bill,  are  sustained  by 
proofs  preponderating  over  the  answer  of  (he  defendant,  which 
does  appoar  to  us  to  be  discredited  upon  ifs  face  in  part,  and  by 
written  instruments  in  other  respects,  leaving  the  complainant's 
charges  unimpaired,  undenied,  and  supported  by  testimony.  The 
defendant,  as  the  whole  matter  was  before  the  court  of  equity,  had 
ample  time  and  opportunity  to  introduce  proofs  to  sustain  the  just- 
ness of  his  account,  and  show  that  the  items  claimed  were  omitted 
by  mistake  or  otherwise,  on  the  settlement  of  1836,  when  the  bond 
and  mortgage  were  given  to  secure  the  payment  of  the  matters  of 
account  then  claimed  and  stated  to  be  due  to  defendant  by  complain- 
ant; but  he  slept  and  introduced  no  testimony  whatever.  Therefore, 
on  a  review  of  the  whole  cause,  we  are  of  opinion  that  the  decree 
of  the  District  Court  of  Iowa,  sitting  as  a  court  of  chancery,  herein 
be  affirmed  with  costs. 

Judge  iMiLLER,  dissenting  from  the  opinion  of  the  court,  deliv- 
ered the  following  separate  opinion: 

When  1  cannot  agree  with  my  brethren,  I  feel  it  incumbent  upon 
me,  particularly  in  cases  so  important  as  this,  to  give  my  reasons 
for  my  dissent. 

Itseerns  from  the  evidence  that  there  had  been  running  accounts 
between  these  parties,  for  some  time,  and  that  Parish  became  in^ 
debtcd  to  Gear  for  various  matters,  including  liabilities  to  a  large 
amount.  In  May,  1838,  the  parties,  according  to  the  deposition 
of  William  S.  Hamilton,  met  to  close  up  their  business,  and  a 
mortgage  was  given  by  Parish  to  Gear  for  four  thousand  two  hun- 
dred dollars,  the  amount  then  supposed  to  be  claimed  and  due. 
The  witness  states  that  at  the  time  the  mortgage  was  given,  it 
was  supposed  that  the  amount  specified  in  the  mortgage  would 
cover  the  debt,  but  that  the  balance,  whatever  it  might  be,  whe- 
ther in  Parish  or  Gear's  favor,  was  to  be  settled  as  just  and  cor- 
rect. From  the  tenor  of  the  deposition,  I  understand  the  mort- 
gage to  have  been  given  as  a  security  foi  whatever  might  be  due. 
The  witness  says  that  Gear's  books  were  there,  but  from  the  facts 
respecting  the  manner  in  which  the  sum  was  stated,  and  the  un- 
derstanding respecting  whatever  balance  there  might  be,  it  re- 
quires no  stretch  of  imagination  to  perceive  that  there  may  have 


REPORTS,  109 

been  liabilities  on  other  transactions  not  recollected  at  the  time, 
The  mortgage  nyas  payable  in  four  months,  and  was  paid  when  due, 
and  Parish  received,  and  produced  on  the  trial,  his  receipt  for  the 
four  thousand  two  hundred  dollars.  The  mortgage  was  never  re- 
corded, but  was  kept  by  Gear,  who  resides  in  Illinois.  It  does 
not  appear  that  the  paper  was  ever  in  Wisconsin,  until  it  was  pro- 
duced at  the  trial,  by  Gear,  for  cancellation;  and  ho  avers  that  he 
\vould  have  given  it  over  to  Parish,  but  that  he  could  not  find  it. 
In  October,  1837,  the  claim  of  Gear  against  Parish  was  put  into 
the  hands  of  Mr.  Hoge,  a  lawyer  of  Galena,  for  collection.  This 
claim,  deducting  the  credit  of  the  mortgage,  and  the  amount  of 
four  thousand  two  hundred  dollars  paid  thereon,  left  a  balance  of 
upwards  of  fifteen  hundred  dollars  due  to  Gear,  to  which  he 
swears  in  his  bill;  for  the  recovery  of  which  suit  was  instituted  in 
the  District  Court  of  Iowa  county,  against  Parish,  and  after  con- 
sulting counsel,  he  voluntarily  confessed  judgment  thereon  for 
the  balance  claimed.  The  defendant  rested  satisfied  with  this 
judgment  against  him  until  September  following,  when  he  filed  his 
bill  for  an  injunction  of  it,  alledging  fraud.  He  alledges  that  he 
gave  the  judgment  for  the  purpose  of  procuring,  from  Gear,  the 
mortgage,  and  that  Mr.  Hoge  promised  to  have  the  mortgage  sur- 
rendered to  him.  The  only  proof  of  this  is  proof  of  the  declara- 
tions or  acknowledgments  of  Mr.  Hoge  that  he  did  say  so,  and  this 
is  proved  by  the  counsel  of  Parish,  whom  he  had  consulted  before 
he  confessed  the  judgment.  If  there  was  any  thing  in  this,  it  was 
competent  to  have  Mr.  Hoge  testify;  he  was  a  competent  wit- 
ness, and  his  declarations  were  not  the  best  evidence.  But  there 
is  nothing  in  it  to  found  a  decree  upon  to  enjoin  this  judgment. 
For  before  the  judgment  was  confessed,  the  whole  account  was 
presented  to  Parish,  on  which  he  consulted  counsel;  he  then 
came  into  court,  and  acknowledged  it  to  be  correct  by  his  confes- 
sion of  judgment.  Why  should  Parish  confess  a  judgment  for  up- 
wards of  fifteen  hundred  dollars,  and  thereby  create  a  lien  on  his 
lands,  for  the  purpose  of  getting  into  his  possession  a  mortgage 
that  was  never  recorded,  and  merely  in  the  possession  of  a  man  in 
Illinois,  and  for  which  he  held  a  full  and  entire  release  and  dis- 
charge? It  is  too  preposterous  to  admit  of  serious  consideration. 
And  if  there  is  any  fraud  proven  in  obtaining  this  judgment,  on  the 
part  of  Gear  or  Hoge,  I  cannot  see  it. 

All  the  pointed  allegations  in  the  bill  are  fully  and  positively 


110  REPORTS. 

denied  by  the  defendant,  Gear,  and  all  the  testimony  in  the  case 
was  the  deposition  of  Hamilton  relating  to  the  settlement,  and 
the  deposition  of  Turney,  who  was  the  attorney  of  Parish,  and 
consulted  by  him  before  he  confessed  the  judgment,  who  proves 
what  Parish  said  to  him,  and  the  above  acknowledgment  of  Hoge. 
This  was  not  evidence  under  any  circumstances,  and  should  not 
be  considered.  Jf  such  testimony  were  allowed,  a  client  and  hia 
attorney  can  make  as  much  evidence  as  may  be  necessary  to  gain 
any  cause.  In  addition  to  this,  what  look  place  between  client 
and  counsel  respecting  a  cause,  as  in  this  case,  should  not  be  re- 
ceived as  evidence;  Graham's  Practice,  39.  Mr.  Hoge  could 
have  been  examined,  and  consequently,  his  acknowledgment  was 
not,  in  the  first  place,  the  best  evidence.  But  it  was  as  to  the 
surrender  of  the  mortgage  only,  not  as  to  the  legality  or  honesty 
of  the  consideration  of  the  judgment.  But  there  is  nothing  in 
this,  as  at  the  trial  the  mortgage  was  in  court  to  be  cancelled,  and 
the  defendant  had  a  receipt  in  full  for  its  amount. 

Even  if  Hamilton's  testimony  was  conclusive,  and  )eft  no  doubt 
or  uncertainty  as  to  the  real  balance  between  the  parties,  there  is 
but  the  testimony  of  one  witness  to  the  transaction,  which  is  not 
sufficient,  unless  accompanied  with  strong  corroborating  circum- 
stances; 9  Cranch,  153.  The  corroborating  circumstances  relied 
upon  are  the  bond  and  mortgage,  and  these  cannot  be  used  as  a 
substitute  for  another  witness,  when  the  balance,  by  agreement, 
was  to  be  afterwards  settled,  and  for  that  balance  a  judgment  was 
confessed  upon  consultation  and  professional  advice.  In  the  case 
of  the  Marine  Insurance  "Company  vs.  Hodgson,  7  Cranch,  322, 
which  was  a  bill  to  enjoin  a  judgment  on  the  ground  of  a  misrepre- 
sentation of  the  age  and  tonnage  of  the  vessel,  whereby  the  under- 
writers were  induced  to  agree  to  a  high  valuation,  and  thereby  de- 
frauded, Marshall  C.  J.  says,  without  attempting  to  draw  any  pre- 
cise line  to  which  courts  of  equity  will  advance,  and  which  they 
cannot  pass,  in  restraining,  parties  from  availing  themselves  of  judg- 
ments obtained  at.  law,  it  rnay  safely  be  said,  that  any  fact  which 
clearly  proves  it  to  be  against  conscience  to  execute  a  judgment, 
and  of  which  the  injured  party  could  not  have  availed  himself  in 
a  court  of  law,  or  of  which  he  might  have  availed  himself  at  law, 
but  was  prevented  by  fraud  or  accident,  unmixed  with  any  fault 
or  negligence  of  himself  or  agent,  will  justify  an  appeal  to  a  court 
of  chancery.  A  defence  cannot  be  set  up  in  equity,  which  has 


REPORTS.  Ill 

been  fully  and  fairly  tried  at  law,  although  it  may  be  the  opinion 
of  that  court  that  the  defence  ought  to  have  been  sustained  at 
law.  The  equity  of  the  applicant  must  be  free  from  doubt.  And 
the  court  there  decided,  that  as  the  parly  was  not  prevented  frorn 
making  his  defence  at  law,  by  any  act  of  the  plaintiff,  or  by  any 
positive  rule  which  disabled  him  from  doing  so,  a  clear  case  was 
not  made  out  for  the  interposition  of  a  court  of  chancery,  nnd  the 
injunction  was  denied.  Such  should  have  been  the  decision  in 
this  case,  for  that  was  stronger  than  this.  Here  the  mortgage  was 
given  under  an  understanding  that  whatever  balance  should  ap- 
pear on  either  side  should  be  afterwards  settled;  the  setllement, 
too,  whatever  it  was,  was  only  proven  by  one  witness,  the  mort- 
gage was  paid  and  receipted,  and  never  recorded,  the  balance  af- 
terwards presented  and  demanded,  and  sued  for,  when  it  was  pro- 
bably filed  with  the  declaration,  and  after  consultation  with  coun- 
sel, ajudgment  was  confessed  for  it,  which  remained  nearly  one 
year  before  any  application  was  made  to  disturb  it,  and  then  on  a 
pretence  of  the  non-surrender  of  the  paid  mortgage,  which  was  in 
court  at  the  trial  for  cancellation.  The  party  could  have  had  all 
these  matters  investigated  at  law,  he  was  not  prevented  in  any 
way.  and  then  the  accounts  between  the  parties  could  have  been 
fully  settled.  This,  in  my  opinion,  does  not  present  any  such 
case  as  requires  the  extraordinary  decree  of  a  perpetual  injunc- 
tion. 

If  the  court  was  fully  satisfied  that  the  accounts  should  be  exa- 
mined, possibly  the  judgment  might  have  been  opened,  or  an  is- 
sue directed,  to  try  and  investigate  the  same.  Such  a  practice  has 
been  pursued;  2  W.  C.  C.  R.  433.  14  Sergt.  &,  Raw)e,  137. 
Relief  might  be  obtained  in  a  proper  case  on  a  writ  of  error  coram 
nobis;  1  Rawle,  323.  This  is  the  most  the  party  could  ask,  and 
it  is  very  doubtful  whether,  under  all  circumstances,  the  couit 
should  even  go  thus  far,  but  certainly  no  farther. 

MOSES  M.  STRONG,  for  appellant. 

BUKNETT  and  DUNN,  for  appellee. 


112  REPORTS. 


BRATON  BUSHEE,  plaintiff  in  error,} 

v*.  >  Error  to  Grant  county. 

JOHN  WRIGHT,  defend  ant  in  error,  ) 

IN  actions  njninst  sevprnl  defendants,  whereadeclarntion  is  used  as  the 
first  process,  a  copv  of  the  declaration  must  be  personally  served  on  all  of 
the  defendants  before  a  default  can  be  entere:!  aga;nst  any ;  and  it  is  error 
to  take  a  default  against  one  before  all  are  personally  served. 

Wright  brought  an  action  of  assumpsit  against  Cyrus  Harperand 
Braton  Bushee  in  the  Grant  District  Court,  founded  on  ihe  fol- 
lowing wriling: 

"VAN  BUREN,  December  6, 1837. 
"County  of  Grant,  Territory  of  Wisconsin: 

Articles  of  agreement  made  and  entered  into  between  John 
Wright,  of  the  county  aforesaid,  of  the  first  part,  and  Cyrus  Har- 
per and  Braton  Bushee,  party  of  the  second  part.  The  said  John 
Wright  has  this  day  sold  to  Cyrus  Harper  and  Braton  Bushee» 
one-third  of  a  certain  mineral  lot  known  by  the  name  of  the  Wright 
&.  Hudson  lot,  and  all  his  mineral  that  is  on  the  ground,  for  the 
consideration  of  eight  hundred  dollars  in  hand  and  two  hundred 
more,  provided  it  comes  out,  as  soon  as  the  mineral  is  raised. 
(Signed)  JOHN  WRIGHT, 

CYRUS  HARPER, 
BRATON  BUSHEE." 

The  suit  was  brought  to  recover  the  $200,  claimed  to  be  due 
by  proviso.  The  declaration  contained  two  counts;  in  one  of 
which  it  was  averred  that  the  $200  was  to  be  paid  when  81000 
worth  of  mineral  should  be  raised  on  the  ground,  and  averring 
that  that  quantity  had  been  raised;  the  oilier  averring  that  it  was 
to  be  paid  when  $200  worth  should  be  raised,  and  averring  that 
amount  to  have  been  raised. 

The  suit  was  commenced  by  declaration  as  the  first  process, 
which  was  duly  served  on  Bushee,  and  returned,  not  found,  as  to 
Harper.  Bushee  was  defaulted  in  the  clerk's  office  for  want  ofa 
plea,  and  no  discontinuance  as  to  Harper  was  entered  at  any  time. 
At  the  September  term,  1840,  being  the  first  term  after  the  com- 
mencement of  the  suit,  Bushee,  by  his  counsel,  conceiving  tho 


REPORTS.  113 

default  to  be  irregular,  made  a  motion  to  have  it  set  aside,  but  did 
not  pay  the  costs.     The  cause  was  not  reached  on  the  calender 
for  trial  at  that  term,  and  the  motion  was  not  disposed  of  until  af- 
ter the  petit  jury  was  discharged,  when  it  was  overruled   by  the 
court.     Bushee  then  offered  to  file  an  affidavit  of  merits,  pay  the 
costs,  and  plead  the  general  issue,  and  moved  on  those  grounds  to 
set  aside  the  default,  which  motion   was  also  overruled;  and,  on 
motion  of  Wright,  the  default  was  made  absolute  and  a  writof  in- 
quiry awarded,  when  the  cause  was  continued  until  the  next  term. 
At  the  March  term,  1841,  Bushee  filed  an  affidavit  of  merits  and 
of  reasons  in  excuse  for  not  pleading  before  the  default  was  en- 
tered, and  again  moved  to  set  aside  the  default,  which  motion 
was  also  overruled.     At  the  same  term,  the  venue  was  changed, 
upon  his  application,  to  Iowa  county.     At  the  September  term, 
1841,  of  the  Iowa  District  Court,  the  writ  of  inquiry  was  executed, 
upon  the  execution  of  which,  the  plaintiff  below  offered  to  read  as 
evidence  the  depositions  of  three  witnesses,  each  of  which  testi- 
fied that  the  meaning  of  the   agreement  sued  on,  as  understood 
among  miners,   was   to  pay  the  §200  as  soon  as  the  first  $200 
worth  of  mineral  came  out  of  the  ground.     The  defendant  object- 
ed to  these  depositions,  but  the  court  overruled  the  objection  and 
permitted  the  depositions  to  be  read.     The  defendant  below  of- 
fered in  evidence  two  depositions,  taken  in  the  presence  of  the 
adverse  party,  who  cross-examined  the  witnesses,  proving  that 
Wright  had   not  the  interest  in  the  ground  that  was  specified  in 
the  agreement,  and  one  of  them  testified  that  Wright  had  admit- 
ted that  he  was  not  to  be  paid  the  $200,  until  §1000  worth  of  min- 
eral should  come  out  of  the  ground.     The  plaintiff  objected  to 
these  depositions  on  the  ground  that  the  facts  proven  went  to  de- 
feat the  plaintiff's  right  of  action,  and  on  the  ground  of  informal- 
ities in  taking  and  certifying  them,  and   the  court  sustained  the 
objection  and  rejected  the  depositions,  upon  which  the  court  de- 
cided— "  That  by  the  default  the   defendant  had  confessed   the 
plaintiff's  right  of  action  as  declared  and  averred  in  his  declara- 
tion, and  that  the  jury  were  not  permitted  to  inquire  into  any  mat- 
ters that  would  tend  to  defeat  the  plaintiff's  right  of  action."    Af- 
ter the  verdict,   Bushee  moved    for  a  new  trial  and  in  arrest  of 
judgment,  both  of  which  motions  were  overruled  by  the  court  and 
final  judgment  rendered  against  him.     Exceptions  were  taken  to 
the  various  decisions  of  the  court  in  the  progress  of  the  cause, 

15 


114  REPORTS. 

and  -this  writ  or  error  is  prosecuted  to  reverse  the  judgment  of  tbo 
court  below. 

The  plaintiff  in  error  assigned  the  following  errors  in  the  pro- 
ceedings of  the  District  Court: 

1.  The  default  taken  and  entered  in  the  clerk's  office  in  vaca- 
tion, was  erroneous. 

2.  The  court  erred  in  overruling  the  motions  to  set  aside  the 
default  made  at  the  September  term,  1840,  of  the  Grant  District 
Court. 

3.  The  court  erred  in  ordering  the  default  of  the  defendant  to 
be  entered,  and  in  awarding  a  writ  of  inquiry  of  damages  at  the 
September  term,  1840,  of  the  Grant  District  Court. 

4.  The  court  erred  in  overruling  the  motion  to  set  aside   the 
default  made  at  the  March  term,  1840,   of  the  Grant   District 
Court. 

5.  The  District  Court  of  Iowa  county  erred  in  permitting  the 
evidence  offered  on  the  part  of  the  plaintiff  below,  to  be  read  in 
evidence  to  the  jury. 

6.  The  court  erred  in  rejecting  the  evidence  offered  by  the  de- 
fendant below,  and  in  deciding  tint  by  the  default  the  defendant 
had  confessed  the  plaintiff's  right  of  action  as  declared  and  aver- 
red in  his  declaration,  and  that  the  jury  were  not  permitted  to  in- 
quire into  any  matters  that  would  tend  to  defeat  the  plaintiff's 
right  ofvaction. 

7.  8.  9.  The  court  erred  in  ovenulir.g  the  motion  for  a  new 
trial,  in  arrest  of  judgment,  and  in  entering  judgment  against  the 
defendant  below. 

BUKNETT,  for  pl'tff  in  error: 

The  default  taken  in  this  case  in  the  clerk's  office  was  irregular. 
At  common  law,  a  plaintiff  cannot  proceed  against  one  of  sever- 
al joint  contracting  parties,  until  all  arc  brought  before  the  court 
in  some  way;  By  the  statute  of  the  Territory,  before  he  can  so 
proceed,  he  must  discontinue  as  to  the  defendants  not  found,  and 
amend  his  declaration.  Revised  Slat.  207,  208,  sec.  G7,  68. 
Where  the  declaration  is  the  first  process,  «Z/the  defendants  mr.st 
be  personally  served.  Revised  Stat.  1201,  sec.  10.  This  default, 
then,  was  irregularly  taken,  and  ought  to  have  been  set  aside  up- 
on bare  motion.  1  Paine  &,  DUCT'S  Practice,  (i^5. 

If  the  default  was  regular,  still  it  ought  to  have  been  set  aside 
upon  an  affidavit  of  merits,  pleading  isstiubl  y,  and  payment  of  costs, 


REPORTS.  115 

where  a  trial  has  not  been  lost.  1  Tidd's  Prac.  (11  Ed.)  567;  1 
Paine  &  Duer,  621,  622;  Davenport  vs.  Ferris,  6  John.  Rep. 
131 ;  Talmatlge  vs.  Stockholm  and  another,  14  John.  Rep.  321 ; 
2  Strange,  975;  4  Burr.  1996.  The  provision  of  our  statute 
(page  209)  gives  the  defendant  the  right  to  set  aside  the  default 
within  a  limited  time,  even  when  regularly  taken,  upon  payment 
of  costs,  without  any  affidavit  of  merits.  It  was  decided  below, 
that  this  took  from  the  court  all  discretion  upon  the  subject.  This 
is  not  warranted  by  fair  construction.  At  common  law,  the  court 
was  bound  to  exercise  a  sound  discretion  upon  the  circumstances, 
and  if  the  defendant  made  a  proper  case  in  due  time,  the  court 
was  bound  to  set  aside  the  default,  otherwise  it  might  refuse. — 
The  statute  is  cumulativej  and  not  in  derogation  of  the  common 
law.  By  it,  a  right  is  secured  to  the  defendant  which  he  had  not 
before,  of  setting  aside  a  default  without  an  affidavit  of  merits,  or 
any  exercise  of  the  discretion  of  the  court. 

The  court  below  erred,  as  we  think,  in  permitting  witnesses  who 
were  not  present  at  the  making  of  the  contract,  to  testify  as  to 
the  meaning  of  the  agreement.  A  written  instrument  must  ex- 
plain itself  unless  it  becomes  ambiguous  in  its  application,  by  ex- 
trinsic facts;  and  in  such  case,  it  can  only  be  explained  by  the  tes- 
timony of  persons  acquainted  with  the  original  contract  between, 
the  parties,  and  who  can  testifv  as  to  their  intention  and  meaning 
in  making  the  contract.  2  Starkie,  544,  '5,  '6,  '7,  '8,  '9. 

It  is  also  conceived  that  the  District  Court  erred  in  its  decision 
upon  rejecting  the  evidence  offered  by  the  defendant  below.  Al- 
though it  is  admitted  to  be  law,  that  where  a  default  is  regular, 
the  defendant  cannot  defeat  the  recovery  entirely,  yet  he  has  a 
right  to  show  by  competent  testimony  before  the  jury  of  inquest, 
any  matter  that  will  reduce  the  plaintiff's  damages,  even  to  a 
nominal  sum.  1  Paine  &  Duer,  634,  635,  and  the  authorities 
there  cited. 

DUNN,  for  deft  in  error: 

At  common  law,  a  default  may  be  taken  against  one  of  several 
defendants;  so  it  may  by  our  statute;  and  joint  defendants  may 
plead  separately.  The  service  of  the  declaration  was  sufficient  to 
bring  Bushec  into  court,  the  same  as  any  other  process.  It  was 
duly  served  on  him,  and  the  default  was  regularly  taken  against 
him  for  his  own  neglect  to  plead,  and  it  could  only  be  set  aside  in 
the  manner  and.  in  the  time  pointed  out  in  the  statute.  The  mo- 


116  REPORTS. 

lion  that  was  made  to  set  it  aside  upon  an  affidaritof  merits  would 
have  been  sufficient  at  common  law,  but  under  the  statute,  it  could 
not  be  sustained  after  the  jury  was  discharged.  The  statute  con- 
trols the  court  and  loaves  it  no  discretion  upon  ihc  subject. 

As  a  general  principle,  oral  testimony  cannot  be  received  to  ex- 
plain written  instruments;  yet  in  particular  cases  such  testimony 
is  admissible.  To  explain  words  which  are  used  in  relation  to 
particular  customs,  arts,  professions,  or  business,  and  which,  to 
those  unacquainted  with  their  application  would  be  unintelligible, 
parol  testimony  may  be  received.  Roscoe  on  Ev.  10,  11. 

The  depositions  of  the  defendant  were  properly  rejected  by  the 
court  below.  There  was  no  notice  given,  nor  were  they  certified 
according  to  law;  and  although  the  plaintiff  attended  and  cross- 
examined  the  witnesses,  that  does  not  dispense  with  the  positive 
requisitions  of  the  statute,  which  require  that  notice  shall  be  giv- 
en or  waived  in  writing.  Besides,  the  matter  of  the  depositions 
was  inadmissible  in  the  case  as  it  stood  under  default,  as  it  went 
to  defeat  the  plaintiff's  right  of  action. 

Opinion  of  the  Court,  by  Judge  IKVIX: 

This  case  was  commenced  by  declaration  in  the  District  Court 
of  Grant  county,  by  John  Wright,  the  defendant  in  error,  against 
Braton  Bushee,  the  plaintiff  in  error,  and  Cyrus  Harper,  and  after- 
wards, on  a  change  of  venue,  it  was  taken  to  the  county  of  Iowa. 
Process  seems  to  have  been  served  on  but  one  of  the  defendants, 
and  as  to  the  other,  returned  not  found.  By  "  an  act  concerning 
proceedings  in  courts  of  record,"  a  declaration  may  be  the  first 
process,  and  if  a  copy  of  it,  together  with  the  rule  that  the  defen- 
dant plead  within  twenty  days  after  service  of  the  same,  be  ser- 
ved personally  on  said  defendant,  and  he  should  fail  to  plead,  a  de- 
fault is  to  be  enteied  against  him.  In  this  case,  Bushee,  the  on- 
ly one  of  the  defendants  served  with  process,  did  not  so  plead, 
and  a  default  was  entered  against  him,  to  take  off  which,  he  ap- 
peared and  made  a  motion  at  the  next  District  Court,  which  mo- 
lion  was  overruled.  The  principal  question,  and  certainly  the 
first  in  the  cause  is,  did  the  court  err  in  so  deciding?  By  the  six- 
teenth section  of  said  act  it  is  provided,  that  "upon  due  proof  of 
the  service  of  a  declaration  personally  on  all  the  defendants  in 
the  cause,  their  appearance  shall  be  entered  by  the  clerk  of  the 
court,  and  their  default  may  be  entered  for  not  pleading,  and  the 
same  proceedings  may  be  had  against  them  in  all  respects  as  if 


REPORTS.  117 

they  had  appeared."  From  the  reading  of  the  law,  all  must  be 
personally  served  with  process.  In  the  State  of  New  York,  there 
was  a  statute  with  similar  provisions,  and  the  court  (see  7  Wen- 
dell; 517,  and  9  Wendell,  433,)  held,  "  that  in  a  suit  commenced 
by  declaration  against  several  defendants,  the  plaintiff  could  noi 
proceed  until  all  the  defendants  were  served  with  the  declara- 
tion." The  court  is  of  opinion,  that  when  declaration  is  the  first 
process,  and  there  be  more  than  one  defendant,  process  must  be 
served  personally  on  all,  and  that  it  is  erroi  to  take  a  default  when 
only  a  part  of  the  defendants  are  served  with  process.  The  de- 
fault taken  in  this  case,  being  taken  without  authority  of  law, 
should  have  been  set  aside,  and  the  District  Court  erred  in  over- 
ruling the  motion  made  to  that  effect. 

From  the  uncertainty  in  the  assignment  of  the  error,  (the  only 
one  remaining  undisposed  of  by  the  point  already  noticed,)  the 
court  does  not  deem  it  necessary  to  decide  any  thing  in  relation 
to  it,  particularly  as  it  relates  to  matters  about  which  the  authori- 
ties are  numerous.  It  is  the  opinion  of  the  court,  that  for  the  error 
noticed,  the  judgment  of  the  District  Court  be  reversed  with  costs, 
and  that  the  same  be  so  certified,  that  such  other  and  further  pro- 
ceedings may  be  had  therein  as  to  lasv  may  appertain. 

BURNETT  and  MOSES  M.  STRONG,  for  pl'tff  in  error. 

DUNN,  for  deft  in  error. 


118  REPORTS. 


IN  BANKRUPTCY,  AUGUST  29xn,  1842: 
Before  Judges  IRVIN  and  MILLER. 


In  the  matter  of 
JOHN  A.  McKISSON 


?    „ 
,*  A 


IT  seems  objections  were  made  to  the  bankrupt's  discharge  on 
the  ground,  that  he  had  not  scheduled  and  given  up  to  the  assignee, 
for  the  benefit  of  his  creditors,  certain  improvements  on  the  pub- 
lic lands  of  the  United  States.  Upon  this  question,  the  Court 
said: 

The  Court  does  not  conceive  the  improvements  on  the  public 
lands,  as  mentioned  in  the  assignee's  report  herein,  to  be  such  an 
interest  as  can  be  passed  to,  or  vested  in,  the  assignee  for  the  ben- 
efit of  the  creditors  of  the  bankrupt. 

NOTE. — From  the  above  decision,  it  would  seem  to  follow,  that  mere  pos- 
session and  improvements  on  the  public  lands,  are  not  subject  to  sale  under 
execution ;  that  a  judgment  at  law  is  no  lien  upon  them;  and  that  a  mort- 
gage upon  them  would  not  vest  any  right  of  foreclosure  in  the  mortgagee. 
—[REP. 


REPORTS.  119 


Cases  argued  and  decided  at  the  July  Term,  1843. 


UNITED  STATES,          ) 

rs.  >  Error  to  Iowa  county. 

BENJAMIN  SALTER.    ) 

WHERE  a  defendant  has  been  tried  upon  an  indictment  or  information, 
and  a  verdict  of  acquittal  has  been  rendered,  no  writ  of  error  lies  at  the  in- 
stance of  the  prosecution,  to  reverse  the  judgment. 

If  a  court  quashes  an  indictment  or  arrests  a  judgment  illegally,  a  writ 
of  error  may  be  prosecuted  in  such  case,  at  the  instance  of  the  prosecution, 
to  reverse  the  decision. 

Salter  was  indicted  by  the  grand  jury  of  Iowa  county  for  forge- 
ry, and  upon  the  trial  the  District  Attorney  offered  certain  evi- 
dence in  support  of  the  prosecution  which  was  rejected  by 
the  court,  to  which  decision  exceptions  were  taken.  A  verdict 
of  acquittal  was  rendered  by  the  juiy,  and  the  District  Attorney 
sued  out  this  writ  to  correct  the  errors  of  the  court  below,  in  re- 
jecting the  evidence  offered  by  the  prosecution  on  the  trial  of  tho 
case. 

The  cause  came  up  for  argument  at  the  July  term,  1842;  when 
tta  question  was  suggested  by  the  court,  whether  a  writ  of  error 
could  be  sustained  at  the  instance  of  the  prosecution  after  a  ver- 
dict of  acquittal  had  been  rendered?  The  matter  was  submitted 
to  the  court,  who  took  the  same  under  advisement  until  the  pres- 
ent term,  when  Judge  MILLER  delivered  the  following  opinion  of 
the  Court,  dismissing  the  writ. 

The  defendant  was  indicted  in  the  District  Court  of  Iowa  coun- 
ty for  forgery.  At  the  trial  the  District  Attorney  offered  to  give 
certain  facts  in  evidence,  for  the  purpose  of  making  out  the  case, 
which  were  rejected  by  the  court.  The  defendant  was  acquitted 
and  discharged.  A  writ  of  error  was  sued  out  by  the  District  At- 
torney, and  this  decision  of  the  court  assigned  for  error. 

The  first  question  to  be  settled  is,  should  this  court  take  cogni- 
zance of  this  case? 

The  practice  of  revising  cases  by  appeal  and  writs  of  error,  on 
the  part  of  the  prosecution,  upon  various  decisions  of  the  inferior 


120  REPORTS. 

court,  upon  matters  of  law,  is  quite  common,  but  not  after  a  verdict 
of  not  guilty.  In  the  case  of  The  Commonwealth  vs.  McKisson 
and  others,  8  Sergt.  &.  Rawle,  420,  the  defendants  were  indicted 
for  a  conspiracy  lo  cheat.  On  motion  of  the  defendants,  the  in- 
dictment was  quashed,  upon  which  the  Commonwealth  sued  out 
a  writ  of  error,  and  the  supreme  court  reversed  the  decision,  and 
directed  that  the  record  be  remitted  to  the  court  below  with  or- 
ders to  proceed  in  the  indictment.  In  the  case  of  The  Common- 
wealth vs.  Taylor,  5  Binney,  277,  it  appears  that  the  defendant 
had  been  convicted,  and  the  court  arrested  the  judgment  on  the 
ground  that  the  offence  charged  was  not  indictable;  and  the  re- 
cord was  brought  to  the  supreme  court  by  writ  of  error,  where  the 
judgment  was  reversed,  and  the  record  was  remitted  to  the  quar- 
ter sessions,  that  they  might  proceed  to  give  judgment  against  the 
defendant.  The  same  practice  is  pursued  in  New  Yoik,  but  in  a 
more  formal  and  technical  manner.  In  the  case  of  The  People 
rs.  Stone,  9  Wend.  182,  the  indictment,  on  the  motion  of  the  de- 
fendant, hud  been  quashed,  and  at  a  subsequent  session  of  the 
court,  the  District  Attorney,  for  the  purpose  of  enabling  him  to 
remove  the  case  to  the  su  preme  court  by  writ  of  error,  was  permit- 
ted to  make  a  record,  stating  judgment  to  have  been  rendered  for 
the  defendant  as  on  demurrer  to  the  indictment.  The  supreme 
court  allowed  this  proceeding,  as  no  writ  of  error  can  be  brought 
in  that  State  on  an  order  quashing  an  indictment.  In  the  case  of 
The  People  vs.  the  Onond,aga  C.  P.  2  Wend.  631,  it  was  held  to 
be  a  proper  course  to  be  pursued  in  a  criminal  case,  where  the 
court  below  had  arrested  the  judgment.  The  powers  and  juris- 
diction of  the  court  are  not  determined,  either  by  an  order  arrest- 
ing the  judgment  or  quashing  the  indictment.  A  writ  of  error, 
sued  out  on  the  part  of  the  prosecution,  upon  the  judgments  and 
decisions  of  the  court  upon  questions  of  practice,  can  be  sustain- 
ed; except  where  the  defendant  has  been  acquitted  by  a  verdict, 
or  convicted,  and  no  motion  in  arrest  of  judgment  made  and  sus- 
tained. It  is  right  that  it  should  be  so,  for  a  court  might  illegallj 
quash  an  indictment  or  arrest  a  judgment  when  the  public  would 
otherwise  have  no  redress.  The  usual  course  is,  after  the  indict- 
ment against  the  defendant  has  been  quashed,  to  prefer  a  new  and 
more  rc-gular  one;  1  Chit.  Grim.  Law,  250,  260;  Bacon's  Abrg't, 
Jr.diclment,  K.;  Comyn's  Digest,  Indictment,  H.  And  if  the 
judgment  is  ultimately  arrested,  all  the  proceedings  will  be  set 


REPORTS.  121 

aside;  but  it  will  be  no  bar  to  a  subsequent  indictment,  which  the 
prosecutor  may  immediately  prefer;  1  Chitty's  Crim.  Law,  542; 
Com.  Dig.  Indictment,  N.;  4  Black.  Com.  375.  For  the  defers 
dant's  life  or  liberty  has  never  been  in  actual  jeopardy,  and  the 
ends  of  public  justice  have  not  been  satisfied,  either  in  his  con- 
viction or  acquittal. 

In  4  Black.  Com.  381,  we  find  it  laid  down,  that  there  hath  yet 
been  no  instance  of  granting  a  new  trial,  where  the  prisoner  was 
acquitted  upon  the  first.  If  the  jury,  therefore,  find  the  prisoner 
not  guilty,  he  is  then  forever  quit  and  discharged;  except  he  be 
appealed  of  felony  within  the  time  limited  by  law.  And  upon 
such  acquittal  or  discharge  for  want  of  prosecution,  he  shall  be 
immediately  set  at  large.  Also,  in  2  Hawkins1  P.  C.  442.  In 
1  Chitty's  Crim.  Law,  535,  it  is  stated,  that  a  new  trial  cannot, 
in  general,  be  granted  on  the  part  of  the  prosecu  lion,  after  the  de- 
fendant has  been  acquitted,  even  though  the  verdict  appears  to  be 
against  evidence.  No  new  trial  can  be  granted  where  the  defen- 
dant has  been  acquitted,  although  the  acquittal  was  founded  up- 
on the  misdirection  of  the  judge;  6  East.  315;  4  Maule  &  Sel- 
wyn,  337;  1  Chit.  Rep.  352;  2  Tidd'sPrac.  942;  1  Starkie's  N. 
P.  516;  1  Wilson,  298;  12  Mod.  9.  The  same  doctrine  is  sta- 
ted in  6  Bacon's  Abrg't,  title,  Trial,  9,  page  675,  676.  If  the  de- 
fendant, in  an  indictment  or  information,  have  been  acquitted,  the 
court  will  not  grant  a  new  trial,  notwithstanding  the  verdict  were 
contrary  to  evidence.  But  it  seems  to  be  the  better  opinion,  that 
when  the  verdict  was  obtained  by  fraud  of  the  defendant,  or  in 
consequence  of  irregularities  of  his  proceedings,  as  by  keeping 
back  the  prosecutor's  witnesses,  or  neglecting  to  give  due  notice 
of  trial,  a  new  trial  will  be  granted;  1  Chit.  Crim.  Law,  536.  The 
same  doctrine  seems  to  have  been  quoted  favorably  by  the  su- 
preme court  of  Massachusetts,  in  the  case  of  The  Commonwealth 
vs.  Green,  17  Mass.  Rep.  526.  In  the  case  of  The  People  vs. 
Mather,  4  Wendell,  262,  the  supreme  court  of  New  "York  says; 
that  "  in  criminal  cases,  where  the  defendant  has  once  been  ac- 
quitted, the  reluctance  to  grant  new  trials  has  ever  been  very  great. 
It  is  a  conceded  rule  of  law,  not  to  grant  a  new  trial  in  such  cases 
because  the  verdict  has  been  against  evidence.  Whether  a  new 
trial  can  be  granted  where  there  has  been  acquittal,  without  in- 
fringing the  rights  of  the  defendant,  even  where  the  court  has 
misdirected  the  jury,  is  now  an  unsettled  question."  But  in  the 

16 


122  REPORTS. 

case  of  The  People  vs.  Comsiock,  8  Wendell,  549 ;  where  the 
defendant  had  been  acquitted,  a  new  trial  was  moved  for  on  the 
ground  of  the  misdirection  of  the  jury  by  the  presiding  judge,  the 
English  doctrine  was  approved,  and  the  motion  denied. 

It  is  a  maxim  of  the  law,  that  no  one  shall  be  tried  twice  for  the 
same  offence;  or  his  life  or  person  brought  again  into  jeopardy, 
where  there  has  once  been  an  acquittal.  And  the  same  rule  holds 
throughout,  in  all  cases  upon  penal  statutes,  and  upon  all  indict- 
ments and  informations  for  misdemeanors,  as  well  as  felonies. — 
The  State  vs.  Wright,  2  South  Car.  Rep.  517;  The  State  vs.  De 
Hart,  2  Halst.  N.  J.  Rep.  172;  Overseers  of  the  Poor  vs.  Lunt, 
15  Wendell,  565.  The  prohibition  in  the  Constitution  of  the  U. 
States,  "  nor  shall  any  person  be  subject  for  the  same  offence  to 
be  twice  put  in  jeopardy  of  life  or  limb,"  is  an  old  maxim  of  the 
common  law,  which  means,  that  no  person  shall  be  tried  a  second 
time  for  the  same  offence,  after  a  trial  by  a  regular  and  competent 
jury,  upon  a  good  indictment,  whether  there  be  a  verdict  of  ac- 
quittal or  conviction;  United  Slates  vs.  Gilbert,  2  Sumner's  C.  C. 
Rep.  19.  But  this  rule  is  now  settled  throughout  the  United 
States,  that  the  courts  can  grant  a  new  trial,  at  the  instance  of 
the  defendant,  in  capital  as  well  as  in  other  cases. 

It  seems,  that  in  a  case  where  a  new  trial  could  be  of  no  bene- 
fit to  the  party,  it  will  not  be  granted;  Duncan  vs.  Dubois,  3  J. 
C.  135.  The  same  rule  is  applicable  where  a  reversal  of  the  judg- 
ment is  sought  upon  a  writ  of  error.  Now  apply  this  principle  to 
this  case.  If  the  prosecution  should  prevail  in  this  writ,  and  re- 
verse this  cause  for  the  alledgcd  error,  it  would  end  there;  for  the 
court  could  not  award  a  venirie  facias  de  novo.  We  could  not, 
on  reversal,  order  our  judgment  to  be  certified  to  the  District 
Court,  with  directions  to  have  the  defendant  apprehended  and  put 
a  second  time  on  his  trial.  This  would  be  a  violation  of  every 
principle  of  criminal  justice.  If  this  practice  were  tolerated,  the 
court  would  be  required  to  sign  a  bill  of  exceptions,  at  the  in- 
stance of  a  prosecutor,  who  might  be  urged  to  it  for  purposes  of 
revenge,  when  the  court,  in  order  to  afford  him  the  full  benefit  of 
his  exceptions,  would  have  to  retain  ihe  defendant,  cither  in  cus- 
tody or  under  bail,  notwithstanding  he  had  been  acquitted  by  the 
verdict  of  a  jury. 

A  writ  of  error  is  not  a  continuation  of  the  suit  below,  because 
it  may  be  sued  out  by  a  new  attorney,  without  obtaining  a  rule 


REPORTS.  123 

for  a  change  of  attorney;  7  T.  R.  337;  2  John.  Rep.  287;  19 
Wendell,  152;  and  in  many  respects  it  is  considered  as  a  ne\y 
action;  2  Tidd'sPrac.  1196;  which  we  have  shown  is  not  allowa- 
ble in  criminal  cases.  On  page  376  of  the  Statutes,  is  an  act  to 
provide  for  appeals,  new  trials,  and  exceptions  in  criminal  casesj 
but  it  is  exclusively  for  the  benefit  of  the  defendant  upon  convic- 
tion. And  by  the  seventh  section  of  the  act,  notwithstanding  the 
judge  who  tried  the  cause  has  allowed  and  signed  a  bill  of  excep- 
tions at  the  instance  of  the  defendant,  yet,  if  it  should  clearly  ap- 
pear to  him  that  such  exceptions  are  frivolous,  immaterial,  or  on- 
ly intended  for  delay,  he  may  enter  judgment  and  award  sentence, 
in  such  manner  as  he  imy  deem  reasonable.  Should,  then,  this 
court,  after  reflecting  npon  the  objects  and  policy  of  this  statute, 
and  the  principles  and  practice  above  stated,  allow  or  sustain  a 
writ  of  error,  in  the  absence  of  all  statutory  provisions,  at  the  in- 
stance of  the  prosecution,  after  a  verdict  of  not  guilty  had  been 
finally  pronounced  and  the  defendant  discharged?  Certainly  not. 
The  writ  must  be  quashed. 

WILLIAM  R.  SMITH,  District  Attorney. 

F.  J.  DUNN,  for  deft  in  error. 


DAVID  B.  H.lLL,pl>ffin  error, 

Error  to  Dane  county. 
EDWARD  BLOOMER,  deft  m error,  ' 


,i 


A  -WRIT  of  error  will  not  lie  to  reverse  an  interlocutory  judgment.  The 
judgment  must  be  final,  leaving  nothing  to  be  done  in  the  cause,  before  it 
can  be  brought  into  the  supreme  court  for  reversal. 

Hill  brought  an  action  of  replevin  against  Bloomer,  in  the  Dane 
District  Court.  On  the  motion  of  Bloomer,  the  Court  quashed 
the  writ,  and  rendered  a  judgment  for  damages  in  favor  of  the  de- 
fendant, and  awarded  a  writ  of  inquiry  which  has  not  been  yet  ex- 
ecuted. Hill  sued  out  a  writ  of  error  to  reverse  the  judgment  of 
the  District  Court;  and  at  the  present  terra,  Bloomer,  by  his  coun- 


124  REPORTS. 

sel,  moved  the  court  to  dismiss  the  writ  because  no  final  judg- 
ment had  been  rendered  in  the  case. 

DUNN,  for  deft  in  error,  and  in  support  of  the  motion: 

The  record  in  this  case  shows  thai  no  final  judgment  has  been 
given.  A  judgment  for  damages  was  given  upon  quashing  the 
writ,  and  a  writ  of  inquiry  awarded  which  has  not  been  executed. 
The  judgment  is  only  interlocutory,  and  a  writ  of  error  will  not 
lie  in  such  cases.  This  is  the  rule  of  law  in  all  cases,  and  the 
Organic  Act  only  authorizes  the  writ  of  error  where  the  judgment 
is  final. 

AR:SOLD,  contra: 

This  is  not  an  ordinary  interlocutory  judgment  given  in  the  pro- 
gress of  the  cause,  but  one  that  afiectually  concludes  the  rights 
of  the  parties  as  to  the  subject  matter  of  the  suit,  and  for  this  pur- 
pose it  is  final;  see  Stat.  Wis.  275,  sec.  30,  upon  which  the  judg- 
ment was  rendered.  The  judgment  is  final  as  to  the  rights  of  the 
parties  in  respect  of  the  property  replevied,  and  the  damages  are 
only  accessory  to  the  judgment.  In  such  a  case  a  writ  of  error 
will  lie  to  reverse  the  judgment  before  the  writ  of  inquiry  is  exe- 
cuted; 9  Viner's  Abridgt.  505;  Graham's  Prac.  933. 

MOSES  M.  STRONG,  in  reply: 

The  judgment  to  which  a  writ  of  error  will  lie,  must  be  a  judg- 
ment, that  not  only  concludes  the  rights  of  the  parties,  but  one 
that  is  so  perfect  in  itself  that  it  can  be  carried  into  effect  without 
any  further  action  of  the  court.  The  authorities  that  have  been 
read,  go  no  farther  than  this.  They  relate  principally  to  the  ac- 
tion of  ejectment.  Under  our  own  statute  in  relation  to  that  ac- 
tion, the  principle  would  apply.  The  judgment  in  rjectment 
would  be  complete  as  to  the  recovery  of  the  land;  the  damages 
would  have  to  be  gained  by  a  continuation  of  the  proceedings  and 
filing  a  new  declaration. 

By  an  act  of  the  Legislature  passed  at  the  last  session,  this 
court  is  authorized  in  case  of  affirmance  of  judgment,  to  enter  up 
the  proper  judgment  here  and  award  execution.  In  this  case,  if 
the  judgment  should  be  affirmed,  there  is  nothing  on  which  the 
court  could  award  execution,  for  the  sum  to  be  recovered  is  not 
ascertained. 

Judge  MILLER  delivered  the  opinion  of  the  Courf, quashing  the 
writ : 

In  the   District  Court,  David  Hill  was  plaintiff  and  Edward 


REPORTS.  125 

Bloomer  defendant,  in  an  action  of  replevin.  On  motion  of  the 
defendant,  the  writ  was  quashed,  and  the  court  ordered,  that  the 
plaintiff  take  nothing  by  his  writ,  and  that  the  defendant  recover 
of  the  plaintiff  his  costs,  and  further,  on  motion  of  defendant,  the 
court  awarded  a  writ  of  inquiry,  to  assess  the  value  of  the  proper- 
ty replevied  and  the  damages  for  the  detention  thereof.  A  writ 
of  inquiry  was  issued  but  is  not  yet  executed.  To  reverse  these 
orders  of  the  District  Court,  a  writ  of  error  was  sued  out,  which 
the  defendant  has  moved  this  court  to  quash,  for  the  reason  that 
there  is  no  final  judgment  or  decision  of  the  said  District  Court. 
By  the  organic  law  of  the  Territory,  writs  of  error,  bills  of  ex- 
ceptions, and  appeals  in  chancery  causes,  shall  be  allowed  in  all 
cases,  from  the  final  decisions  of  the  District  Courts  to  the  Su- 
preme Court,  under  such  regulations  as  may  be  prescribed  by  law. 
The  only  question  to  be  determined  is,  whether  there  is  a  final 
decision,  or  judgment  in  this  cause  in  the  District  Court?  By 
section  thirty  oPtho  act  concerning  replevin,  pnge  275  of  the  stat- 
utes, if  the  property  specified  in  the  writ  has  been  delivered  to 
the  plaintiff,  and  the  defendant  recover  judgment  by  discontinu- 
ance, or  non-suit,  such  judgment  shall  be,  that  the  defendant  have 
return  of  the  goods  and  chattels  replevied,  unless  he  shall  elect  to 
waive  such  return  pursuant  to  any  of  the  provisions  contained  in 
said  statute.  Now,  by  considering  the  order  quashing  the  writ, 
equivalent  to  a  judgment  by  discontinuance  or  non-suit,  with  a 
judgment  that  the  defendant  have  return  of  the  goods  and  chattels 
replevied,  the  cause  would  be  finally  decided  between  the  parties 
in  the  District  Court;  the  rights  of  the  parties  would  be  conclud- 
ed, and  the  plaintiff  would  be  entitled  to  his  writ  of  error.  But 
by  the  thirty-second  section  of  the  same  act,  the  defendant,  wheu- 
ever  he  shall  be  entitled  to  a  return  of  the  property  replevied,  in- 
stead of  taking  judgment  for  such  return  as  above  provided,  may 
take  judgment  for  the  value  of  the  property  replevied,  in  which 
case,  such  value  shall  be  ascertained  by  the  jury  on  the  trial,  or 
by  a  writ  of  inquiry,  as  the  case  may  require.  The  defendant 
elected  to  take  judgment  for  the  value  of  the  property  replevied, 
and  there  not  having  been  a  jury  empannellotl  in  the  cause,  a  writ 
of  inquiry  was  awarded  to  assess  the  same.  The  plaintiff  having 
received  the  property  into  his  possession  from  the  sheriff  on  the 
writ,  the  mere  order  of  the  coutt  quashing  the  writ,  or  awarding 
a  writ  of  inquiry,  does  not  disturb  the  possession,  or  subject  the 


126  REPORTS. 

plaintiff  to  the  payment  of  damages  and  costs.  The  writ  of  in- 
quiry must  be  executed  and  confirmed,  and  judgment  entered  on 
the  same  for  the  amount  found  by  the  jury,  before  the  plaintiffcan 
be  affected.  This  may  ndver  be  done;  and  until  it  is  done,  the 
plaintiff's  possession  of  the  property  is  as  perfect  as  if  the  writ  had 
not  been  quashed.  It  is  apparent,  that  this  court  cannot  take  cogn- 
izance of  cases,  in  judgment,  or  proceedings  merely  interlocuto- 
ry; but  the  decision  of  the  District  Court  must  be  final,  and  of 
which  a  record  can  be  made,  and  which  shall  decide  the  right  of 
property;  Yates  vs.  The  People,  6  John.  Rep.  4Q1.  The  En- 
glish practice  referred  to  in  the  argument,  is  not  applicable  here. 
There  a  man  may  have  a  writ  of  error  before  all  parts  of  the  cause 
are  decided,  as  on  demurrer,  or  before  a  writ  of  inquiry  of  dama- 
ges is  executed;  1  Roll's  Ab.  751.  A  writ  of  error  will  there  lie 
on  a  fine  and  recovery,  though  the  word  judgment,  or  any  thing 
in  the  form  of  the  judgment,  is  not  to  be  found  in  the  proceedings; 
1  Roll's  Ab.  747.  In  New  York,  a  writ  of  error  will  not  lie  until 
a  final  determination  of  all  the  issues  joined  on  the  court  below, 
unless  from  the  record  it  is  apparent  itself,  that  the  judgment  ren- 
dered in  the  court  below,  disposes  of  the  whole  matter;  Pete  vs. 
McCreiv,2l  Wendell,  G67.  In  Pennsylvania,  a  writ  of  error  lies 
in  all  cases,  in  which  a  court  of  record  has  given  a  final  judgment; 
Commonwealth  vs.  The  Judges,  3  Binney,  273.  Hence,  a  writ 
of  error  does  not  lie  upon  an  interlocutory  judgment  given  for  the 
plaintiff  upon  a  demurrer  in  an  action  sounding  in  damages;  Lo- 
gan vs.  Jennings,  4  Watts,  355.  Nor  does  it  lie  upon  a  judgment 
quod  compulel'm  accountrender;  Butlcrvs.  Zeigler,  1  Penn.  Rep, 
135.  In  the  case  of  The  Life  and  Fire  Insurance  Company  of 
New  York  vs.  Adams,  9  Peters,  602,  Chief  Justice  Marshall  re- 
marks: "That  the  Supreme  Court,  in  the  exercise  of  its  ordinary 
appellate  jurisdiction,  can  take  cognizance  of  no  case,  until  a  final 
judgment  or  decree  shall  have  been  made  in  the  inferior  court. 
Though  the  merits  of  the  case  may  have  been  substantially  de- 
cided, while  any  thing,  though  merely  formal,  remains  to  be  done, 
this  court  cannot  pass  upon  the  subject.  If,  from  any  intermedi- 
ate stage  in  the  proceedings,  an  appeal  might  be  taken  to  the  Su- 
preme Court,  the  appeal  might  be  repeated  to  the  great  oppression 
of  the  parties.'1  From  the  tenor  of  these  decisions  in  the  Supreme 
Courts  of  the  United  States  and  in  the  states  of  New  York  and 
Pennsylvania,  we  cannot  consider  the  judgment  entered  by  the 


REPORTS.  127 

District  Court  of  Dane  county,  a  final  judgment  in  the  cause. — 
The  value  of  the  property  is  to  be  ascertained  by  a  jury,  which  is 
a  matter  of  substance,  and  much  more  essential  than  mure  matter 
of  form,  as  required  by  the  Supreme  Court  of  the  United  States. 
And  the  execution  of  the  writ  of  inquiry,  is  quite  as  essential  to 
the  final  disposition  of  the  cause,  as  the  report  of  auditors  on  the 
judgment  of  quod  computcl  in  Pennsylvania.  If  the  District  Court 
has  erred,  or  shall  hereafter  err  in  any  of  the  subsequent  proceed- 
ings yet  to  be  had  in  the  cause,  this  court  will  correct  the  errors, 
upon  a  writ  of  error  sued  out  at  the  proper  time. 

This  writ  of  error  must  be  quashed. 

ARNOLD  and  CATLIN,  for  pl'fFin  error. 

DUNN  and  MOSES  M.  STKONG,  for  deft  in  error. 


CHARLES  C.  WELDEN  &  Bothers,  pPtffs  in  error,) 

vs.  >  Error  to  Iowa  county, 

THOMAS  C.  LEGATE,  dcJH  in  error.  } 

A  WRIT  of  error  will  not  lie  to  reverse  the  decisions  of  the  District  Courts 
in  chancery  causes;  the  only  remedy  for  the  party  aggrieved,  is  by  appeal. 

A  bill  in  chancery  was  filed  by  Legate  against  Walden  and  oth- 
ers in  the  Iowa  District  Court.  The'  defendants  were  non-resi- 
dents, and  upon  taking  the  ordinary  rules,  and  publishing  notice, 
the  bill  was  taken  pro  confcsso  for  want  of  an  answer,  and  a  final 
decree  rendered  in  favor  of  Legate.  The  defendants  below  sued 
out  a  writ  of  error  to  reverse  the  decisions  of  the  District  Court  j 
and  at  this  term  the  defendant  in  error,  by  his  counsel,  moved  the 
court  to  quash  the  writ,  because  no  writ  of  error  lies  in  chancery 
proceedings. 

DUNN,  for  deft  in  error,  and  in  support  of  the  motion: 
Errors  in  chancery  proceedings  can  only  be  corrected  on  ap- 
peal.    The  organic  law  provides  for  writs  of  error  to  judgments  at 
law,  and  appeals  in  chancery  causes.     The  statute  of  the  Territo- 
ry (see  Stat.  VVis.  275)  allows  an  appeal,  and  regulates  the  man- 


128  REPORTS. 

nerof  taking  it.  Where  the  statute  provides  a  particular  remedy, 
and  points  out  the  mode  of  pursuing  it,  by  necessary  implication 
it  prohibits  any  other,  and  where  an  appeal  is  provided  for,  the  writ 
of  error  is  prohibited. 

EASTMAN,  contra: 

Decrees  in  chancery,  when  the  whole  case  is  spread  upon  the 
record,  are  as  much  the  subject  of  a  writ  of  error  as  a  judgment  at 
law.  The  statute  of  the  Territory  is  cumulative,  and  provides  for 
superseding  the  decree,  but  it  does  nol  exclude  the  writ  of  error, 
which  is  a  common  law  remedy  to  correct  the  errors  on  the  re- 
cord. The  object  of  the  appeal  is  to  remove  the  testimony  in  the 
cause  into  the  Supreme  Court,  in  order  that  the  merits  of  the  case 
may  be  reviewed,  and  if  the  court  below  erred,  either  upon  the 
facts  or  the  law,  that  such  error  may  be  corrected.  In  some  of 
the  States,  under  similar  statutes,  the  practice  is  to  review  chan- 
cery causes  either  on  appeal  or  writ  of  error;  3  Binney,  27t>.  At 
common  law  a  writ  of  error  would  not  lie  upon  a  subpena  in  chan- 
cery, because  the  court  of  chancery  is  not  a  court  of  record;  but 
wherever  the  proceedings  are  of  record,  as  in  the  petty  bag  office, 
or  in  partition,  error  will  lie;  9  Viner's  Ab.  474;  Harrison's  Di- 
gest, 1006.  Our  courts  of  chancery  are  courts  of  record,  and 
therefore  a  writ  of  error  will  lie  to  review  their  proceedings. 

The  acts  of  Congress  allow  of  appeals  in  chancery  causes,  to 
the  Supreme  Court  of  the  United  States,  and  yet  we  find  that  court 
frequently  reviewing  cases  brought  up  by  writ  of  error.  The 
same  practice  prevails,  under  similar  laws,  in  Kentucky  and  Ohio, 

Thus  it  appears,  that  where  the  proceedings  in  chancery  are 
spread  upon  the  record,  as  with  us,  writs  of  error  and  appeals  are 
concurrent  remedies. 

Du.\x,  in  reply: 

In  all  the  cases  referred  to,  where  chancery  causes  have  been 
brought  up  by  writ  of  error,  it  has  been  by  statutory  authority. 
The  acts  of  Congress  sanctioned  the  practice  of  the  Supreme 
Court,  and  the  laws  of  Ohio  and  Kentucky  authorize  the  concur- 
rent remedies  to  be  used. 

It  is  a  well  settled  principle,  that  wherever  a  statute  gives  the 
right  of  appeal,  a  writ  of  error  will  not  lie  unless  expressly  au- 
thorized by  the  statute.  Jarris  vs.  Blanchard,  6  Mass.  Rep.  4; 
fiavage  vs.  Gulliver,  4  do.  174. 

Judge  IRVIN  delivered  the  opinion  of  the  Court,  quashing  the 
writ: 


REPORTS.  129 

This  case  came  up  on  error  to  the  District  Court  of  Iowa  coun- 
ty, sitting  as  a  court  of  chancery,  and  is  here  met  by  a  motion  on 
the  part  of  the  defendant  in  error,  "  to  quash  the  writ  of  error  here- 
in and  dismiss  the  proceedings  from  this  court  for  the  following 
reasons;  1.  No  writ  of  error  lies  in  a  chancery  cause  from  the 
District  Courts  to  the  Supreme  Court  of  Wisconsin  Territory,  but 
an  appeal  nlone  lies." 

In  support  and  resistance  of  this  motion,  many  authorities  have 
been  referred  to.  Is  it  true,  that  a  writ  oferror  does  not  lie  from 
this  court  to  the  District  Courts  in  chancery  causes?  For,  if  that 
be  true  in  law,  then  the  writ  was  improvidently  awarded,  and 
would  have  to  he  quashed. 

By  the  9th  sec.  of  the  act  establishing  the  Territorial  govern- 
ment of  Wisconsin,  the  judicial  power  of  the  Territory  is  "  vested 
in  a  supreme  court,  district  courts,  probate  courts,  and  injustices 
of  the  peace."  "  And  the  said  supreme  and  district  courts,  re- 
spectively, shall  possess  chancery  as  well  as  common  law  jurisdic- 
tion." "And  writs  of  error,  bills  of  exceptions,  and  appeals  in 
chancery  causes,  shall  be  allowed  in  all  causes,  from  the  final  de- 
cisions of  the  said  district  coiuts  to  the  supreme  court,  under  such 
regulations  as  may  be  prescribed  by  law,  but  in  no  case  removed 
to  the  supreme  court,  shall  a  trial  by  jury  be  allowed  in  said  court." 
So  far,  therefore,  as  this  act  of  Congress,  commonly  called  the  or- 
ganic law  (and  which  is  to  us  as  a  constitution,)  is  concerned,  it 
is  very  plain,  that  the  mode  provided  for  taking  cases  in  chancery 
from  the  District  Courts  to  the  Supreme  Court,  is  by  appeal,  and 
in  no  other  way. 

The  Legislature  of  the  Territory,  as  will  be  seen  on  page  295 
of  the  Statutes  of  Wisconsin,  sec.  101,  has  prescribed  the  regula- 
tions, as  they  were  required  by  the  organic  law  to  do,  in  which  it 
is  provided,  that  "  when  any  person,  being  complainant  or  defen- 
dant, shall  think  himself  aggrieved  by  the  decree  or  final  order  of 
a  district  court  sitting  as  a  court  of  chancery,  such  person  may  en- 
ter an  appeal  within  thirty  days  to  the  supreme  court,  from  such 
decree  or  final  order,  on  giving  bond  with  good  security,  in  such 
sutr,  as  the  judge  of  the  district  court  shall  order,conditioned  to  pay, 
satisfy  and  p'erform  the  decree  or  final  order  of  the  supreme  Court, 
and  all  costs,  in  case  the  decree  or  final  order  of  the  district  court 
shall  be  affirmed, •  and  if  the  decree  or  final  order  of  the  district 
court  shall  be  confirmed,  the  supreme  court  may  award  such  dam- 

17 


130  REPORTS. 

ages  against  the  appellant  as  they  may  think  proper,  not  exceed- 
ing twenty-five  per  cent,  on  the  amount  of  the  money,  or  other 
subject  matter  of  such  decree."  Thus  it  will  be  perceived,  that 
the  legislature,  in  prescribing  the  regulations  for  an  appeal,  have 
made  thsm  peculiar,  differing  altogether  from  the  regulations  pre- 
scribed for  taking  up  by  writ  of  error,  its  appropriate  and  un- 
disputed subjects.  Parsons,  C.  J.  in  4  Mass.  Rep.  page  178,  in 
disposing  of  a  similar  question,  says,  in  speaking  of  an  appeal,  "  it 
is  less  expensive  and  more  convenient  than  a  writ  of  error,  and 
further  relief  may  be  granted  on  an  appeal  than  can  be  on  a  writ 
of  error.  On  an  appeal,  the  cause  of  error  maybe  removed  by 
amendment;  mistakes  in  fact  on  the  merits,  may  be  corrected; 
neither  of  which  can  be  done  on  error;  and  at  the  same  time,  an 
erroneous  judgment  below  may  be  amended  by  the  court  having 
appellate  jurisdiction.  The  statute  in  giving  an  appeal,  has,  in  our 
opinion,  taken  away,  by  reasonable  implication,  the  remedy  by  er- 
ror, unless  in  cases  where  the  aggrieved  party,  without  any  laches 
on  his  part  could  not  avail  himself  of  an  appeal.  But  if  it  appears 
on  the  record  that  the  plaintiff  in  error  might  have  appealed,  the 
court  will,  ex  officio,  quash  the  writ;  or  the  court  will  quash  it  on 
a  plea  of  abatement,  disclosing  the  plaintiff's  remedy  by  appeal. 
In  this  case,  it  appears  on  the  record,  that  the  plaintiff  in  error 
might  have  sought  his  remedy  by  an  appeal  to  the  common  pleas. 
He  cannot  come  to  this  court  per  saltum,  but  he  ought  to  have  ap- 
pealed, and  if  dissatisfied  with  the  judgment  of  the  common  pleas, 
he  might  then  have  sued  out  his  writ  of  error." 

In  the  examination  of  the  case  at  bar,  it  not  only  appears  that 
the  plaintiffs  in  error  might  have  appealed  by  the  provisions  of  the 
statute,  but  that  they  did  pray  an  appeal  from  the  District  Court, 
which  was  granted  to  them,  and  why  they  abandoned  that  clear 
and  undisputed  remedy,  for  one  so  questionable,  this  court  cannot 
even  conjecture. 

Parsons,  C.  J.  in  G  Mass.  Rep.  page  5,  reiterates  the  same  opin- 
ion. Sec  also,  2  Wheat.  Rep.  132. 

It  would  be  difficult  to  conceive  upon  \vhatground,  under  the 
peculiar  statutory  provisions  as  contained  in  the  organic  law  and 
the  act  of  the  legislature  of  the  Territory,  the  idea  of  bringing  the 
cause  here  on  writ  of  error  rested,  unless  it  was  supposed,  that 
there  was  something  in  the  very  nature  of  a  writ  of  error  which 
bid  defiance  to,  and  rode  down  all  legislative  provisions;  but  in- 


REPORTS.  131 

asmuch  as  we  cannot  recognize  in  it  any  such  quality,  but  on  the 
contrary,  declare  it  as  fully  a  subject  of  legislation  as  appeal  is, 
we  must  hold  it  equally  liable  to  legislation.  The  statutes,  as  we 
have  already  seen,  provide  an  appeal,  and  an  appeal  only,  as 
the  proper  remedy  for  the  party  aggrieved,  and  to  which  we  must 
hold  the  plaintiffs  in  error  as  the  only  proper  remedy.  It  is  there- 
fore considered,  that  the  writ  of  error  was  improvidently  sued  out, 
and  that  the  same  be  quashed. 

EASTMAN,  for  plaintiffs  in  error. 

DUNN,  for  defendant  in  error. 


AUGUSTUS  A.  BIRD, pFjf  in  error,  \ 

HENRY  FAKE  and  (  Error  io  Milwaukee  county. 

LESTER  H.  COTTON,  <fr/>fcm  error,) 

THE  sixth  and  seventh  sections  of  the  statute  of  Michigan  to  regulate  ta- 
verns, approved  23d  April,  1833,  which  prohibited  the  trusting  of  any  per- 
son except  travellers  or  ledgers,  for  drink  or  other  tavern  expenses  over 
$1  25,  and  niado  void  any  note  or  other  security  for  the  same,  affected  the 
remedy  only,  and  being  repealed,  such  prohibited  charges  made  while  it 
was  in  force,  may  now  be  sued  for  and  recovered. 

The  prohibitions  of  that  act  did  not  vest  any  right  in  the  party  trusted, 
within  the  saving  clause  of  the  repealing  statute. 

A  dormant  partner  need  not  be  joined  with  his  co-partners  in  an  action 
to  recover  the  partnership  demands;  and  the  fact  that  the  defendant  knew 
him  to  be  a  partner  does  not  alter  the  case;  to  make  it  necessary  that  he 
should  be  joined,  the  defendant  must  have  known  the  dormant  partner  as 
such  in  the  transaction  which  is  the  subject  matter  of  the  suit. 

One  parrner  cannot  bind  another  in  the  transfer  of  accounts,  and  the  set- 
tlement of  the  business  of  the  firm,  as  between  the  partners,  without  his  con- 
sent ;  to  make  such  transfer  or  settlement  binding  as  between  the  partners, 
they  must  all  consent  to  it. 

A  writ  of  attachment  was  sued  out  in  the  Milwaukee  District 
Court,  in  the  name  of  Henry  Fake,  against  Bird,  in  December, 
1810.  There  appear  to  have  been  no  steps  taken  in  this  pro- 
ceeding, as  between  the  original  parties,  after  the  levy  and  return 
of  the  writ. 

In  October,  1841,  Fake  &  Cotton  filed  their  declaration  in 
assumpsit  against  Bird,  under  Fake's  attachment.  Accompany- 


132  REPORTS. 

ing  the  declaration  was  a  hill  of  particulars  of  charges  by  the  plain/? 
tiffs  as  keepers  of  the  American  Hotel  at  Madison,  against  the  de-- 
fendant,  a  large  portion  of  which  was  for  liquors  and  tavern  ex- 
penses,  the  last  item  of  which  account  was  dated  30th  August, 
1839.  Bird  pleaded  the  general  issue  to  this  declaration,  and 
gave  notice  of  set-off,  and  that  the  amount  of  the  plaintiffs'  de- 
mand had  been  paid  and  applied  by  the  defendant)  at  their  re- 
quest, upon  the  discharge  of  a  debt  owing  by  the  plaintiffs  for  rent 
of  the  American  Hotel.  An  objection  was  raised  on  the  trial  to 
the  non-joinder  of  James  Morrison  as  a  co-plaintiff. 

The  deposition  of  Morrison  had  been  taken  in  the  cause,  and 
was  read  upon  the  trial  in  the  court  below;  which,  after  proving  a 
written  agreement  between  him,  as  the  owner  of  the  American 
Hotel,  and  Fake  &.  Cotton,  which  is  embodied  in  the  opinion  of 
the  court,  proved  further:  that  Fake  presented  to  him  an  account 
due  from  Bird  to  the  American  Hotel  while  it  was  kept  by  Fake 
&,  Cotton,  under  said  agreement,  amounting  to  $255  15,  being 
the  balance  due  from  Bird  as  stated  by  Fake,  which  amount  depo- 
nent assumed  as  part  payment  of  his  share  of  the  profits  of  the 
house,  and  credited  Fake  &.  Cotton  with  their  proportion  of  said 
account  at  their  request,  and  charged  the  same  to  Bird.  It  was 
the  understanding  that  by  tin's  arrangement  Bird  was  released  from 
all  claims  of  Fake  &  Cotton.  This  arrangement  was  made  on 
30th  or  31st  August,  1839.  Bird's  account  was  charged  in  depo- 
nent's book  and  posted  in  his  ledger.  Fake  &-  Cotton  were  in 
no  other  business  than  keeping  the  hotel,  while  the  account  ac- 
crued, to  his  knowledge.  At  the  time  of  the  arrangement,  depo- 
nent told  Fake  that  if  Bird  acknowledged  the  account  to  be  cor- 
rect, he  would  receive  it  in  payment  of  his  proportion  in  part  of 
the  profits  of  said  house.  He  afterwards  saw  Bird,  who  said  it 
was  correct,  and  deponent  agreed  to  receive  it  as  payment  from 
Fake,  as  above  stated.  The  account  is  charged  against  him  in 
Fake  &,  Cotton's  books.  Bird  and  deponent  have  an  unsettled 
account,  and  Bird  has  put  property  in  his  hands  to  secure  that  and 
all  other  debts.  The  above  transfer  was  agreed  upon  between. 
Fake  and  deponent,  but  they  did  not  effect  a  full  settlement  of 
other  matters  in  relation  to  the  American  Hotel.  There  has  never 
been  any  difficulty  between  deponent  and  Fake  &  Cotton  in  re- 
lation to  the  transfer  of  Bird's  account. 

It  was  also  proven  on  the  trial,  that  the  plaintiffs  below  kept 


REPORTS.  133 

the  American  Hotel  under  the  name  and  firm  of  Fake  &.  Cotton; 
that  they  so  advertised,  made  and  paid  their  bills.  &c.  That  Mor- 
rison lived  thirty  miles  from  Madison,  and  did  not  take  any  active 
part  in  the  business  of  the  hotel;  and  that  the  account  against 
Bird  was  correct  for  the  balance  of  $255  15. 

After  the  evidence  was  closed,  the  court  charged  the  jury: 

"The  objection  to  the  writ  in  this  case  cacnot  defeat  the  action 
at  this  stage.  The  declaration  was  filed  by  both  plaintiffs  confor- 
mably to  the  affidavit  for  tire  writ,  to  which  the  defendant  pleaded 
the  general  issue.  The  cause  is  regularly  at  issue  between  the 
plaintiffs,  Fake  &.  Cotton,  and  the  defendant." 

"The  statute  of  Michigan,  forbidding  the  collection  of  tavern 
bills,  is  a  statute  affecting  the  remedy,  and  being  repealed,  does 
not  now  operate  against  the  plaintiff's  recovery." 

"  It  probably  would  not  have  been  improper  to  include  the  name 
of  James  Morrison,  but  it  was  not  necessary,  and  the  action  is 
well  brought  without  it.  A  defendant  is  not  obliged  to  plead  in 
abatement  the  non-joinder  of  a  partner  who  ought  to  have  been 
made  a  co-plaintiff,  but  may  take  advantage  of  it  on  the  plea  of 
general  issue.  But  it  must  appear  affirmatively  that  such  partner 
was  an  acting  partner,  for  if  he  was  merely  a  dormant  partner,  he 
need  not  be  joined.  An  actual,  without  an  apparent  interest  in 
the  profits  of  a  concern,  constitutes  a  dormant  partner." 

"The  several  members  of  a  firm  cannot  transfer  to  one  of  them 
Iheir  apparent  interest  in  a  joint  debt-so  as  to  enable  him  to  sue 
and  recover  it  in  his  own  name.  The  original  relation  of  debtor 
and  creditor  cannot  be  changed  without  the  consent  of  the  debtor. 
If  this  were  a  transfer  of  this  account  by  the  plaintiffs  to  Morri- 
son, without  the  consent  of  the  defendant,  Morrison  would  have 
to  sue  in  the  name  of  the  partners,  which  a  judgment  in  this  case 
in  favor  of  Bird  would  defeat.  It  might  be  competent  for  Morri- 
son to  collect  and  receive  this  debt,  but  it  does  not  appear  that  it 
has  been  actually  paid  by  Bird.  Then,  as  it  has  not  been  paid  by 
Bird,  and  there  is  no  allegation  that  Lester  H.  Cotton,  one  of  the 
plaintiffs,  ever  consented  to,  or  engaged  in  the  alledged  arrange- 
ment between  Fake  and  Morrison,  the  plaintiffs'  recovery  in  this 
action,  cannot  thereby  be  defeated." 

The  defendant  asked  the  court  to  instruct  the  jury:  "  That  Les- 
ter H.  Cotton  is  bound  in  this  matter  by  the  act  of  Fake,  they  be- 
ing co-partners."  To  which  the  Judge  replied,  and  charged  the 


134  REPORTS, 

jury:     "  Cotton  in  this  matter,  is  not  bound  by  the  act  of  Fake, 
without  his  consent." 

The  defendant  also  asked  the  court  to  instruct  the  jury:  "  That 
if  the  debt  to  Fake  &  Cotton  has  been  paid  at  their  request,  and 
has  been  credited  by  Morrison  to  them,  then  the  plaintiffs  cannot 
recover."  To  which  the  Judge  replied,  and  charged  thajury: 
"  This  is  a  debt  to  the  whole  firm,  and  if  paid  in  any  way  by  de- 
fendant, the  plaintiffs  cannot  recover." 

The  jury  returned  a  verdict  in  favor  of  the  plaintiffs,  upon  which 
the  court  rendered  judgment. 

Exceptions  were  taken  to  the  various  decisions  of  the  court  in 
the  progress  of  the  trial,  and  Bird  has  prosecuted  this  writ  of  error 
to  reverse  the  judgment  of  the  court  below. 

ARNOLD,  for  plaintiff  in  error: 

The  charge  of  the  Judge  to  the  jury,  in  relation  to  the  tavern 
expenses  charged  in  the  plaintiffs'  bill  of  particulars,  is  not  con^ 
sistent  with  sound  principles  of  law.  The  fair  construction  of 
the  statute  of  Michigan,  in  force  at  the  time,  will  make  such  sales 
and  charges  void,  ab  initio.  The  sixth  section  of  the  act,  (Laws 
of  Michigan  120.)  prohibits  the  trusting  for  such  charges,  and  de> 
clares  that  the  tavern  keeper  shall  lose  the  debt,  and  be  incapable 
of  suing  for  if.  The  seventh  section  makes  void  any  note  or 
other  security  taken  for  such  charges,  and  affixes  a  penalt;'  for 
taking  it.  The  policy  of  the  law,  and  the  manner  in  which  it  is 
framed,  show  that  it  was  the  intention  of  the  legislature  to  malie 
all  such  contracts  absolutely  void;  and  a  contract  that  is  void  at 
the  time,  under  a  prohibitory  penal  statute,  cannot  be  made  valid 
by  a  subsequent  repeal  of  the  statute,  and  no  promise  afterwards 
made  to  pay  it  is  binding. 

The  court  erred  in  instructing  the  jury  that  the  action  was  well 
brought  without  joining  Morrison  as  a  co-plaintiff.  We  admit, 
that  a  dormant  partner,  not  known  at  the  time  or  dealt  with  as  such, 
need  not  be  joined.  3  Co  wen  84.  4  Cowen,  717.  But  if  the 
dealing  was  with  a  dormant  partner,  known  to  be  one  of  the  firm, 
he  should  be  joined;"  2  Whart.  Dig.  320.  This  account  was  due 
to  the  American  Hotel  company  which  was  composed  of  Morrison, 
Cotton  and  Fake.  Bird  knew  them  to  be  partners,  for  he  signed 
the  agreement,  and  he  dealt  with  them  as  such.  From  his  know- 
ledge, and  dealings,  Morrison  was  not,  as  to  him,  a  dormant  part- 
ner. See  4  Watts.  4y5,  45G.  Whether  Morrison  was  an  active 


REPORTS.  135 

or  a  dormant  partner,  was  a  question  of  fact  for  the  jury  alone  to 
decide.  The  court  below  decided  the  fact,  and  took  the  question 
from  the  jury  by  the  instructions  given. 

Again,  the  court  assumed  a  matter  of  fact,  in  charging  the  jury 
(hat  it  did  not  appear  that  the  debt  had  been  paid  by  Bird.  It  is 
error,  for  the  court  to  assume  a  matter  of  fact  to  be  true,  that  can 
only  be  ascertained  by  the  verdict  of  a  jury. 

The  instructions  of  the  court  that  Cotton  should  have  consent- 
ed to  any  arrangement  to  settle  the  account  in  order  to  bind  him, 
and  that  he  was  not  bound  by  the  act  of  Fake,  were  not  according 
to  the  principles  of  law.  One  partner  has  power  to  bind  the  firm 
in  matters  relating  to  the  partnership  property  and  the  settlement 
of  partnership  debts.  3  Kent's  Com,  20,  21,  22,  24,  25.  4  Bin- 
ney,  375.  And  a  release  from  one  partner  of  a  debt  due  the 
firm  will  bind  all  the  co-partners.  3  Kent,  24.  14  John.  Rep. 
387.  3  John.  Rep.  68.  17  John.  Rep.  58.  In  this  case,  Cot- 
ton &  Fake,  as  one  party,  contracted  with  Morrison,  and  were 
jointly  bound  to  him.  They  were,  themselves,  co-partners,  as  to 
Morrison,  and  Fake  was  acting  for  himself  and  Cotton  in  settling 
the  business  with  Morrison.  The  arrangement  was  for  Cotton's 
benefit,  and  independently  of  the  power  to  bind  him,  his  consent 
ought  to  have  been  presumed;  at  least  the  question  ought  to  have 
been  left  to  the  jury  for  them  to  decide. 

TWEEDY,  for  defendant  in  error: 

This  cause  is  more  deceptive  in  understanding  the  facts,  than 
in  their  application.  The  business  was  done  in  the  name  of  Fake 
&,  Cotton;  the  account  was  made  out  in  their  names,  and  the  ba- 
lance was  admitted  by  the  defendant  to  be  due.  The  account 
was  duly  proven  on  the  trial,  and  the  first  ground  of  defence  ta- 
ken is,  that  a  large  part  of  the  account  is  for  liquors  and  tavern  ex- 
penses, prohibited  by  law  when  the  charges  were  made;  This 
law  does  not  say  that  the  tavern  keeper  shall  not  sell,  but  that  if 
he  does  sell  on  credit,  he  shall  not  recover.  The  statute  simply 
withholds  the  remedy  in  such  case,  and  now  that  it  is  repealed, 
the  remedy  is  restored.  The  articles  furnished  were  sufficient  to 
impose  a  moral  obligation  to  pay  for  them,  and  this  is  a  good  con- 
sideration for  a  promise;  and  Bird  has  acknowledged  the  balance 
of  the  account  sued  for  to  be  jusf,  long  since  the  repeal. 

The  principal  question  to  be  determined  is,  whether  the  suit  is 
properly  brought  without  joining  Morrison  as  a  co-plaintiff.  We 


136  REPORTS. 

consider  the  law  to  be  settled,  that  in  case  of  a  dormant  partner^ 
the  active  partners  may  or  may  not  join  him,  at  their  own  option. 
Coliyer  on  Part.  394.  The  law  is  thus  laid  down,  that  if  the  dor- 
mant partner  is  a  party  to  the  particular  contract,  then  he  must  be 
joined,  because  in  such  case  he  is  an  actual  party,  as  well  as  a 
party  in  interest.  It  is  admitted  lhat  Bird  knew  Morrison  to  be  a 
partner,  but  that  does  not  alter  the  case,  fur  the  contract  was  not 
made  with  him,  but  with  the  active  partners,  and  Morrison  being 
dormant,  it  was  not  necessary  to  join  him.  2  Whart.  Dig.  323. 
4  Watts,  305.  4  Cowen,717.  3Cowen,84.  4  Wendell, 408. 
1  Chilly's  Plead.  13.  2  Vermont  Rep.  G5.  3  Greenleaf,  394. 
3  Law  Library,  39. 

The  plaintiffs  having  proven  their  demand,  it  became  incum- 
bent on  the  defendant  to  prove  that  it  was  paid.  No  arrange- 
ment between  Morrison  and  Fake  in  relation  to  the  debt  would 
amount  to  payment;  nothing  but  actual  payment  would  extinguish 
the  demand.  If  Bird  and  Cotton  had  been  both  present,  and  as- 
sented to  the  transfer,  and  Bird  had  have  made  a  new  promise,  it 
might  have  been  sufficient.  But  such  an  arrangement  as  was 
made  could  not  extinguish  the  debt.  Cotton  was  no  party  to  it, 
and  although  one  partner  can  collect  a  debt  due  the  firm,  yet  he 
cannot  release  or  remit  it,  especially  if  he  be  a  dormant  partner. 
It  is  said  that  one  partner  can  bind  another.  This  is  true  as  a  ge- 
neral principle,  but  it  does  not  apply  to  the  arrangement  of  the  bu- 
siness of  the  firm  between  the  partners.  In  this  case,  the  arrange- 
ment was  made  by  Fake  in  Cotton's  absence,  and  Cotton  cannot 
be  bound  by  it;  9  Cowen,690.  The  partners  were  settling  busi- 
ness between  themselves,  and  not  doing  business  with  the  world. 
The  arrangement  itself  did  not  amount  to  payment,  and  the  charge 
of  the  court  was  right  according  to  the  law. 

WELLS  in  reply: 

The  portion  of  the  account  that  is  for  tavern  expenses,  was  void, 
and  not  merely  voidable,  by  the  law  when  it  was  created.  If  void, 
the  bare  repeal  of  the  law  since  cannot  make  it  valid.  It  was  not 
intended  tint  the  repealing  act  should  have  any  such  eflfect  in  this 
or  any  other  case,  for  it  saves  the  rights  of  all  persons  as  they  ex- 
isted under  the  laws  repealed.  Slat.  Wis.  470. 

It  is  said  that  Morrison  was  a  dormant  partner,  and  that  he  need 
not  to  have  bet-n  joined  in  the  action.  They  were  all  known  to 
Bird  as  partners,  and  he  dealt  with  them  as  such  throughout  the 


REPORTS,  137 

partnership.  But  whether  he  was  a  dormant  partner  or  not,  and 
if  so,  whether  the  facts  in  the  transaction  were  such  as  to  make  it 
necessary  to  join  him  in  the  action,  and  whether  Bird  had  paid 
the  debt,  were  all  questions  of  fact  for  the  jury  to  ascertain.  But 
the  court,  in  its  charges,  decided  these  facts  for  the  jury,  and  left 
them  nothing  to  do  but  return  a  verdict  for  the  plaintiffs  in  obedi- 
ence to  the  instructions. 

Judge  IRVIN  delivered  the  opinion  of  the  Court: 

This  cause  which  was.  tried  and  decided  in  the  District  Court 
of  Milwaukee,  came  up  on  error,  as  set  forth  and  complained  of, 
in  exceptions  taken  to  the  several  decisions  and  directions  of  the 
court  to  the  jury,  both  in  its  general  charge  and  special  instructions 
asked  for.  When  instructions  to  the  jury  are  asked  for  upon  a 
particular  point  of  law,  as  connected  with  the  case  generally,  or 
upon  the  law,  connected  with  a  particular  point  in  vhe  evidence, 
and  exceptions  to  the  instructions  given  are  taken,  the  inquiry  of 
the  appellate  or  court  of  error,  is  generally  confined  to  the  partic- 
ular and  more  circumscribed  matter  thus  presented;  but  when  the 
exception  \s  taken  to  matter  of  the  general  charge  of  the  court  to 
the  jury,  as  well  as  particular  instructions  asked  for,  the  inquiry 
in  the  appellate  court  necessarily  becomes  more  extended,  and 
sometimes  apparently  diffuse,  as  the  general  charge  rests  upon  the 
views  taken  of  the  whole  case,  as  presented. 

The  first  exception  taken  in  the  court  below,  is  in  this  court 
abandoned,  so  far  as  the  writ  is  concerned,  and  will  not,  therefore, 
be  considered  in  that  particular. 

By  a  provision  of  the  statute  of  the  Territory,  when  a  creditor 
sues  out  a  process  of  attachment  against  his  debtor,  any  other  cre- 
ditor of  said  defendant  may,  at  or  before  the  second  term  of  the 
court  after  the  return  of  said  process  served,  file  his  declaration, 
and  proceed  therein  to  judgment  as  in  other  cases.  This  appears 
to  be  a  case  of  that  kind*  and  in  which  the  defendants  in  error 
seek  to  recover  of  the  plaintiff  in  error  the  amount  of  a  bill  of 
particulars  through  the  medium  of  a  declaration  in  assumpsit,  to 
which  the  defendant  pleaded  the  general  issue. 

In  the  progress  of  the  trial,  it  appears  that  Fake  &.  Cotton  were 
the  keepers  of  a  hotel  at  iMadison,  called  the  American  Hotel, 
and  as  such  keepers  sold  and  furnished  to  Augustus  A.  Bird,  the 
items  mentioned  in  said  bill  of  particulars,  among  which  were 
charges  for  spirituous  liquors,  which  account  of  items  commenced 

18 


138  REPORTS. 

on  the  30th  of  November,  1838,  and  terminated  on  the  30th  of 
August,  1839.  Up  to  the  4th  of  July,  1839,  the  laws  of  Michi- 
gan were  in  force  in  this  Territory,  when  they  ceased  by  repeal. 
In  this  case ,  Bird,  the  plaintiff  in  error,  relied  for  a  part  of  his  de- 
fence on  the  sixth  and  seventh  sections  of  "  an  act  to  regulate  ta- 
verns." See  Laws  of  Michigan,  page  126,  revision  of  1838.  As 
further  defence  in  the  court  below,  Bird,  the  plaintiff  in  error,  in- 
troduced an  agreement  purporting  to  be  made  and  entered  into  by 
James  Morrison,  of  the  first  part,  and  L.  H.  Cotton  and  Henry 
Fake,  of  the  second  part,  which  was  signed  and  sealed  by  L.  H. 
Cotton  and  Henry  Fake,  and  James  Morrison  by  A.  A.  Bird,  by 
which  the  American  Hotel  was  leased  to  Cotton  and  Fake,  and 
which  regulated  and  disposed  of  the  profits  arising  from  said  ho- 
tel, between  the  said  Morrison,  the  lessor,  and  the  said  Cotton 
&.  Fake,  the  lessees.  This  was  introduced  for  the  purpose,  1st, 
of  showing  that  Morrison  was  a  partner  in  the  keeping  of  said  ho- 
tel, and  should  have  been  joined  in  the  action;  and  2d,  that  his 
acts  as  such  partner,  bound  the  firm  keeping  the  American  Hotel. 

The  sixth  section  of  the  law  of  Michigan  above  referred  to,  is 
as  follows:  "If  any  tavern  keeper  shall  trust  any  person  other 
than  travellers,  above  the  sum  of  one  dollar  and  twenty-five  cents, 
for  any  sort  of  strong  or  spirituous  liquors,  or  tavern  expenses,  he 
shall  lose  every  such  debt,  and  be  incapable  of  suing  for  the  same, 
or  any  part  thereof,  and  if  any  such  tavern  keeper  shall  sue  therefor, 
the  person  may  plead  this  act  in  bar,  or  give  it  in  evidence  under 
the  general  issue,  and  if  the  plaintiff  shall  become  non-suited, or 
a  judgment  shall  be  given  for  the  defendant,  every  such  plaintiff 
shall  pay  double  costs." 

The  seventh  section  makes  void  all  securities  taken  upon  such 
trusting,  and  among  other  things  makes  an  exception  in  favor  of 
the  tavern  keeper  in  the  case  of  lodgers  and  travellers. 

The  agreement  referred  to  is  as  follows:  "An  agreement  made 
and  entered  into  at  Madison,  this  21st  day  of  November,  A.  D. 
1838,  between  James  Morrison  of  the  county  of  Iowa  and  Terri- 
tory of  Wisconsin,  party  of  the  first  part,  and  L.  II.  Cotton  and 
Henry  Fake,  of  the  town  of  Madison,  county  of  Dane,  and  Terri- 
tory aforesaid,  party  of  the  second  part,  witncsscth:  That  the 
said  Morrison,  party  of  the  first  part,  for  himself,  his  heirs 
and  assigns,  doth  hereby  agree  to  furnish  the  house  now 
known  as  the  American  Hotel,  in  Madison,  in  a  suitable  manner 


REPORTS; 


for  the  accommodation  of  guests,  and  will  also  furnish  one  labor- 
ing man  to  cut  firewood  for  said  house,  and  doth  hereby  lease  the 
same  to  the  above  named  party  of  the  second  part,  they  comply- 
ing with  the  following  conditions,  to  wit:  the  said  party  of  the 
second  part,  for  themselves,  their  heirs  and  assigns,  agree  to  take 
the  above  mentioned  house  on  a  lease  of  one  year  from  the  date 
of  this  article,  nfter  having  been  furnished  as  above  described,  and 
willfurnishallnecessaryhelp  and  keep  the  same  in  as  good  a 
manner  as  possible,  and  at  the  expiration  of  each  three  months 
during  the  term  of  said  lease,  will  divide  the  nett  profits  that  may 
accrue  equally  with  the  said  party  of  the  first  part,  and  return  the 
furniture  in  as  good  order  as  when  taken,  excepting  the  natural 
wear  and  tear  theVeof  ;  and  the  said  party  of  the  second  part  fur- 
thermore agrees  to  pay  one-half  of  whatever  the  cost  may  be  of 
insuring  the  furniture  against  loss  and  damage  by  fire,  the  same 
to  be  insured  as  soon  as  possible.  And  it  is  further  understood, 
that  each  party  is  to  be  at  half  the  expense  of  furnishing  provi- 
sions, liquors,  and  all  necessary  eatables  for  said  house."  And 
which  is  signed  and  sealed,  as  before  noticed,  and  witnessed  by 
two  witnesses. 

It  further  appears  from  the  testimony  returned  with  the  excep- 
tions taken  in  the  cause,  that  some  time  in  the  summer  of  1839, 
Fake  and  Morrison  attempted  a  settlement  of  the  matters  arising 
out  of  the  keeping  of  the  said  hotel,  when  Fake  proposed  that  Mor- 
rison should  take  the  account  charged  against  Bird,  which  was 
then  declined;  nor  does  it  appear  that  the  parties,  Fake  and  Mor- 
rison, ever  had  another  interview  about  it.  Morrison,  in  his  de- 
position herein  taken,  says:  "I  afterwards  saw  Mr.  Bird,  who 
said,  (in  allusion  to  the  account  against  him,)  it  was  correct,  and 
I  agreed  to  receive  it  as  a  payment  from  Mr.  Fake,  as  above 
stated;"  but  with  whom  he  agreed  does  not  appear.  Thus  stand 
the  prominent  matters  in  this  case,  to  the  understanding  of  which 
a  statement  is  made  necessary  from  the  dusultory  and  unsatisfac- 
tory manner  in  which  the  exceptions  were  taken  below,  excep- 
tions in  most  part  taken  to  the  general  charge  of  the  court  to  the 
jury,  which  we  are  bound  to  presume  was  given  from  a  full  view 
of  the  whole  case. 

The  errors  are  assigned  merely  by  reference  to  the  exceptions 
in  their  numerical  order. 

The  second  exception  is  to  this  charge  of  the  court:     "The 


140  REPORTS. 

statute  of  Michigan  forbidding  the  collection  of  tavern  bills,  is  a 
statute  affecting  the  remedy,  and  being  repealed,  does  not  operate 
against  the  plaintiff's  recovery."  In  the  examination  of  that  stat- 
ute, which  has  already  been  recited,  the  prohibitions  therein  con- 
tained are  not  directed  against  the  actof  selling, butof  collecting. 
The  right  to  sell,  to  any  extent,  the  articles  therein  mentioned, 
cannot  be  questioned,  so  that  it  be  done  for  cash,  and  not  trusted, 
for  it  says, "  if  any  tavern  keeper  shall  trust  any  person,"  &c.  The 
right  10  sell,  therefore,  cannot  be  doubted,  and  the  only  prohibi- 
tion being  upon  the  collection,  it  becomes  clearly  a  matter  that 
relates  to  the  remedy,  and  the  statute  being  since  repealed,  and 
before  the  commencement  of  this  suit,  the  inhibition  upon  the 
remedy  was  removed  with  the  repeal.  At  the  time  of  the  repeal 
spoken  of,  it  was  done  under  a  regular  revision  of  the  laws,  and 
\vasaccompanied  by  this  general  provision  which  is  found  in  the 
fourth  section  of  the  act,  page  407  of  the  Statutes  of  Wisconsin, 
and  is  in  these  words:  "The  repeal  of  any  statutory  provision  by 
this  act.  shall  not  affect  any  act  done  or  right  accrued  or  establish- 
ed, orany  proceeding,  suit,  orprosecution  had  or  commenced  previ- 
ous to  the  time  when  such  repeal  shall  take  effect,"  &c.  The 
prohibition  upon  the  remedy  was  not  such  a  right  accrued  or  es- 
tablished as  was  contemplated  by  the  act,  nor  was  it  a  vested  right. 
The  court  did  not,  therefore,  err  in  the  instruction  given. 

The  third  instruction  excepted  to,  is  this:  "It  probably  would 
not  have  beer,  improper  to  include  the  name  of  James  Morrison, 
but  it  was  not  necessary,  and  the  action  was  well  brought  without 
it.  A  defendant  is  not  obliged  to  plead  in  abatement  the  non- 
joinder of  a  partner  who  ought  to  have  been  a  co-plaintiff,  but 
may  take  advantage  of  it  on  the  general  issue;  but  it  must  ap- 
pear affirmatively  that  such  partner  was  an  acting  partner,  for  if  he 
was  merely  a  dormant  partner,  he  need  not  be  joined.  An  actual, 
without  an  apparent,  interest  in,  the  profits  of  a  concern,  consti- 
tutes a  dormant  partnership." 

It  is  a  principle  of  law  well  settled,  that  a  dormant  partner,  (and 
the  court  are  satisfied  from  the  evidence  that  Morrison  is  nothing 
more.)  need  not  be  joined  with  the  active  partners  in  a  suit.  8 
S.  &,  II.  55;  Morse  rs.  Chase,  4  Watts,  450.  And  the  fact,  that 
Bird  personally  knew  Morrison  to  be  a  partner  (the  fact  of  part- 
nership being  conceded)  nothing  militates  against  the  principle 
that  a  dormant  partner  need  not  be  joined;  for  the  true  distinction 


REPORTS.  141 

we  take  to  be  this:  that  the  defendant  must  know  the  dormant 
partner  in  the  transaction  which  is  matter  of  litigation;  that  is 
the  knowledge  which  the  law  requires  in  order  to  make  an  excep- 
tion to  ihe  general  rule;  3  Cowan's  Rep..  34.  1  ChittjTs  Plead. 
7,8.  2  Esp.  Rep.  468;  and  2  Taunt.  324,  320.  In  this  the 
court  did  not  err. 

The  fourth  exceplioh  is  to  this  charge  of  the  court:  "The  se- 
veral members  of  a  firm  cannot  transfer  to  one  of  them  their  se- 
parate interests  in  a  joint  debt,  so  as  to  enable  him  to  sue  and  re- 
cover it  in  his  own  name.  The  original  relation  of  debtor  and 
creditor  cannot  be  changed  without  the  consent  of  the  debtor.  If 
this  were  a  transfer  of  this  account  by  the  plaintiff  to  Morrison, 
without  the  consent  of  the  defendant,  Morrison  would  have  to  sue 
in  the  name  of  the  partners,  which  a  judgment  in  this  case  in  fa- 
vor of  Bird  would  defeat.  It  might  be  competent  for  Morrison  to 
collect  and  receive  this  debt,  but  it  does  not  appear  that  it  has 
been  actually  paid  by  Bird.  Then,as  it  has  not  been  paid  by  Bird, 
and  as  there  is  no  allegation  that  Lester  H.  Cotton,  one  of  the 
plaintiffsj  ever  consented  to,  or  engaged  in  the  alledged  arrange- 
ment between  Fake  and  Morrison,  the  plaintiff's  recovery  in  this 
action  cannot  thereby  be  defeated." 

The  correctness  of  the  instruction  here  given,  is  recognized  in 
the  case  of  Horback  vs.  Huey,  4  Watts1  Rep.  455;  in  Bun  vs. 
Morris,  1  Caine's  Rep.  54;  and  indeed  it  is  so  clearly  recognized 
in  all  the  authorities,  that  we  do  not  think  it  admits  of  a  doubt. 
In  the  instruction  there  is  no  error. 

Thus  far,  the  exceptions  were  taken  to  the  general  charge  of 
the  court  to  the  jury.  The  fifth  chaige  excepted  to  was  upon  in- 
structions asked  for  by  the  defendant  in  these  words:  "  That 
Lester  II.  Cotton  is  bound  in  this  matter  by  the  act  of  Fake, 
being  co-partners;"  to  which  the  court  replied  and  charged  the 
jury:  "Cotton,  ia  this  matter,  is  not  bound  by  the  act  of  Fake, 
without  his  consent."  That  one  partner  may  bind  his  co-partner 
in  transactions  relating  to  the  business  of  co-partnership,  with 
third  persons,  is  a  principle  coeval  will)  partnership  itself  ;  and  it 
is  equally  clear  that  no  arrangement  about  the  partnership  business 
as  between  themselves,  by  some  of  the  members  of  a  firm,  can 
bind  those  who  do  not  concur  therein.  Were  it  otherwise,  it 
would,  at  any  time,  be  in  the  power  of  one  partner  of  a  firm  to 
ruin  the  balance. 


142  REPORTS. 

The  suth,  and  remaining  instruction  asked  for  by  the  defendant, 
and  excepted  to  as  given,  is  this:  "That  if  the  debt  to  Fake  & 
Cotton  lias  been  paid  at  their  request,'  and  has  been  credited  by 
Morrison  to  them,  then  the  plaintiff  cannot  recover."  To  which 
the  Judge-  replied:  "This  is  a  debt  to  the  whole  firm,  and  if  paid 
in  any  way  by  defendant,  the  plaintiffs  cannot  recover." 

This  we  consider  a  self-evident  proposition,  and  no  error. 

We  cannot  see,  under  a  careful  examination  of  the  whole  case, 
that  the  District  Court  committed  any  error  in  any  of  the  charges 
or  instructions  or  opinions  given.  The  judgment  of  the  District 
Court  is  therefore  affirmed  with  costs. 

ARNOLD  and  WELLS,  for  plaintiff  in  error. 

TWEEDY,  for  defendants  in  error. 


BERRY  HANEY,  ptomfrj  in  error, 


vs. 


SATTERLEE  CLARK  and 
HENRY  JONES,  defendants  in  error, 


Error  to  Dane  county. 


Tin:  Supreme  Court  will  not  notice  any  errors  in  the  proceedings  of  the 
court  below,  unless  they  arc  properly  presented  in  the  record  of  the  case. 

The  court  will  not  consider  any  paper  as  a  part  of  the  record  which  is- 
not  made  so  by  the  pleadings,  or  some  opinion  of  the  court  referring  to  it, 
or  by  a  bill  of  exceptions  taken  in  the  cause;  and  it  makes  no  difference 
that  the  paper  is  certified  up  by  the  clerk. 

A  motion  made  in  the  progress  of  a  cause  in  the  court  below,  and  the 
reasons  and  affidavits  upon  which  it  is  founded,  are  no  part  of  the  record, 
unless  made  so  by  ;>  bill  of  exceptions. 

Clark  and  Jones  brought  suit  against  Henry  before  a  justice  of 
the  peace  of  Dane  county.  Haney  failed  to  appear  and  was  de- 
faulted, aud  the  justice,  upon  proofs,  rendered  a  judgment  in  fa- 
vor of  the  plaintiffs.  Haney,  within  six  days  after,  appealed  to  the 
D;ine  District  Court,  and  there  moved  the  court  for  leave  to  file 
his  set-off  against  the  plaintiff's  demand,  which  was  refused  by  the 
court;  and  upon  the  trial  judgment  was  rendered  in  favor  of  the 
plaintiffs. 


REPORTS.  143 

Haney  sued  out  a  writ  of  error  to  reverse  the  judgment  of  the 
District  Court,  and  has  assigned  for  error,  the  refusal  of  the  court 
to  allow  him  to  file  his  set-offon  the  motion  made  for  that  purpose. 

CLARK,  for  plaintiff  in  error: 

The  District  Court  ought  to  have  allowed  the  defence  to  be 
made  under  the  circumstances  of  the  case.  The  statute  on  the 
subject  of  appeals  from  justices  of  the  peace,  directs  that  the  issue 
in  the  District  Court  shall  be  the  same  as  before  the  justice,  un- 
less the  court  shall  otherwise  direct.  It  is  in  the  discretion  of  the 
court  to  allow  a  different  issue,  but  this  is  a  sound  legal  discretion 
to  be  properly  exercised.  The  same  statute  gives  a  defendant 
who  is  defaulted  before  a  justice  the  right  of  appeal.  The  whole 
spirit  of  the  law,  contemplates  a  trial  on  the  merits;  but  if  the  par- 
ty defaulted,  cannot  make  an  issue  in  the  District  Court,  the  right 
of  appeal  is  a  naked  right  without  any  possible  benefit,  and  the 
provisions  of  the  law  are  wholly  illusory. 

We  contend  that  the  court  was  bound  to  allow  the  amendment 
to  be  made.  The  principle  was  so  decided  in  Illinois  under  a 
similar  statute;  1  Scammon,  137;  and  so  also  in  Pennsylvania,  1 
Rawle,370. 

FIELD,  for  defendants  in  error: 

There  is  no  error  in  the  record  of  this  case.  The  motion  and 
affidavit  in  support  of  it,  are  no  part  of  the  record,  unless  made  so 
"by  a  bill  of  exceptions,  and  this  Court  cannot  notice  them  in  any 
way.  This  is  the  established  doctrine  and  practice  of  the  courts. 
Vanlandingham  vs.  Fellows  and  others,  1  Scammon,  333;  Hin- 
ton  vs.  Brown,  1  Blackford,  429;  Henderson  vs.  Reed,  id*  347; 
Cole  vs.  Driskell,id.  10;  Goldsborough  vs. May,  1  Littell,  254;  4 
Randolph,  189.  In  this  case  there  was  no  bill  of  exceptions  ta- 
ken, and  the  court  cannot  pass  upon  the  matters  assigned  as  error. 
The  sending  up  or  certifying  of  papers  by  the  clerk,  or  incorpora- 
ting them  in  the  transcript,  can  make  no  difference,  for  the  clerk 
has  no  power  to  make  records  for  the  court. 

Opinion  of  the  Court, by  Judge  MILLER: 

This  suit  was  commenced  by  Satterlee  Clark  and  Henry  Jones 
against  Berry  Haney,  before  a  justice  of  the  peace,  where,  in  the 
absence  of  the  defendant,  on  the  return  day  of  the  writ,  judgment 
Was  rendered  for  the  plaintiffs;  from  which  the  defendant  appeal- 
ed to  the  District  Court  of  Dane  county;  where  he  moved  the 
court  for  leave  to  file  his  set-off  to  the  plaintiff's  demand,  which 
was  overruled  by  the  court,  and  this  is  the  error  assigned. 


144  REPORTS. 

The  counsel  for  the  defendant  below,  and  plaintiffin  error,  ne* 
glected  to  have  his  motion  with  his  proposed  set-offernbodiedin  a 
bill  of  exceptions;  and  contented  himself  with  coming  here  with 
a  mere  certified  transcript  of  the  records  of  the  District  Court. — 
The  counsel  of  the  defendants  in  error  refused  to  argue  or  consi- 
der ihe  error  assigned,  for  the  reason  that  the  cause  is  not  properly 
in  this  court,  as  the  motion  of  the  party  is  not  a  part  of  the  record, 
but  can  only  be  made  so  by  a  bill  of  exceptions,  stating  the  mo- 
tion, and  the  nature  of  the  off-set  proposed. 

The  question  is  thus  presented:  is  this  motion  a  part  of  the 
record  which  this  court  will  examine  as  such?  In  cases  at  com- 
mon law,  the  course  of  the  Supreme  Court  of  the  United  States 
is  not  to  consider  any  paper  part  of  the  record  which  is  not  made 
so  by  the  pleadings,  or  by  some  opinion  of  the  court  referring  to 
it.  This  rule  is  common  to  all  the  courts  exercising  appellate  ju- 
risdictioji  according  to  the  course  of  the  common  law.  The  pre- 
liminary question  is,  whether  the  matter  exists  on  the  record? — 
Lessee  of  Fisher  vs.  Cock  will,  5  Peters,  248.  The  appellate 
court  cannot  know  what  evidence  was  given  to  the  jury,  unless  it 
is  spread  on  the  record  in  proper  legal  manner;  Gratz  vs.  Grate, 
4  Rawle,  411.  The  unauthorized  certificate  of  the  clerk,  that 
any  document  was  read,  or  any  evidence  given  to  the  jury,  cannot 
make  that  document,  or  that  evidence,  a  part  of  the  record,  so  as 
to  bring  it  to  the  cognizance  of  the  appellate  court.  Upon  the 
same  principle,  the  court  of  appeals  of  Kentucky  decided,  in  the 
case  of  Ashley  vs.  Sharp,  1  Littel),  1GG,  that  where  the  grounds 
assigned  in  the  record,  are  the  exclusion  of  evidence,  or  of 
title,  papers  on  (lie  former  trial,  the  bill  of  exceptions  ought  to  ex- 
hibit the  evidence  or  title  papers  excluded.  Upon  the  same 
principle,  it  was  decided  by  the  Supreme  Court  of  Illinois,  Van- 
landingham  vs.  Fellows,  1  Scam.  233,  that  the  rea'sons  filed  by  a 
party  as  the  foundation  for  a  motion  in  the  Circuit  Court,  do  not 
thereby  become  a  part  of  the  record.  To  make  them  a  part  of 
the  record,  they  must  be  embodied  in  a  bill  of  exceptions.  And 
because  they  were  not  so  made  a  part  of  the  record,  the  court  re- 
fused to  take  any  notice  of  them.  In  Indiana,  evidence,  wheth- 
er written  or  parol,  can  only  be  made  part  of  record,  by  oyer,  bill 
of  exceptions,  demurrer  to  evidence,  especial  verdict,  or  consent 
of  parties;  Cole  vs.  Driskcll,  1  Black,  10.  The  same  court  de- 
cided in  the  case  of  Shields  and  Wife  vs,  Cunningham,  1  Black, 


REPORTS.  145 

36,  that  a  capias  ad  respondendum  is  not  part  of  the  record,  un- 
less made  in  some  legitimate  method;  and  the  circumstance  of 
its  being  certified  up  by  the  clerk,  can  add  nothing  to  its  validity. 
In  the  case  under  consideration,  a  copy  of  the  off-set  offered  to  be 
filed  in  the  District  Court,  is  not  even  certified  up  by  the  clerk. — 
There  is  no  error  apparent  on  the  record,  and  the  judgment  of 
the  District  Court  must  therefore  be  affirmed.  The  error  com- 
plained of  is  not  properly  presented,  and  for  this  reason  the  court 
will  not  notice  it.  The  People  vs.  Dalton,  15  Wendell,  581. 

CLARK,  for  pl'iff  in  error. 

FIELD,  fordef 'is  in  error. 


ROBERT  BRY ANT,  pf/in  error,  i 

vs.  >  Error  io  Milwaukee  county. 

GEORGE  BARBER,  deft  in error,} 

WHEN  a  party  appeals  from  the  judgment  of  a.  justice  of  the  peace, 
he  must  have  an  entry  of  his  appeal  made  in  the  District  Court  on  or 
before  the  second  day  of  the  next  term  after  the  appeal  is  taken;  and  if 
the  justice  fails  to  send  up  the  papers  as  required  by  law,  he  must  with- 
in that  time  take  a  rule  against  him  to  make  return:  If  the  appellant  neg- 
lects to  take  the  necessary  steps  to  get  his  appeal  before  the  court  until  af- 
ter the  becond  day  of  the  term,  he  cannot  have  it  entered  on  a  subsequent 
day,  and  the  right  accrues  to  the  appellee  to  have  the  cause  entered  and 
judgment  rendered  in  his  favor  upon  the  judgment  of  the  justice. 

Barber  obtained  a  judgment  against  Bryant  before  a  justice  of 
the  peace  of  Milwaukee  county,  from  which  Bryant  appealed  on 
the  12th  February,  1842.  The  next  term  of  the  District  Court 
commenced  on  the  13th  of  June,  1842,  and  on  the  18th  June, 
before  the  time  of  trying  appeals,  according  to  the  arrangement  of 
business  in  court,  the  justice  who  tried  the  case,  handed  the  pa- 
pers to  the  clerk,  when  the  appellant's  counsel  requested  the 
clerk  to  enter  the  cause  on  the  docket.  The  clerk  declined  mak- 
ing the  entry,  and  upon  referring  the  matter  to  the  Court,  the 
Judge  directed  him  to  file  the  papers  but  not  to  enter  the  cause. 
On  the  1st  July,  on  motion  of  the  appellee,  the  cause  was  entered 
and  judgment  rendered  in  his  favor  for  the  amount  recovered  be- 

19 


146  REPORTSi 

fore  the  justice,  with  interest,  damages  and  costs,  according  to 
the  statute,  the  appellant,  by  his  counsel,  being  in  court  at  the 
time  and  objecting  thereto  and  offering  to  go  to  trial. 

To  reverse  this  judgment,  Bryant  sued  out  a  writ  of  error  and 
has  brought  the  cause  into  this  court. 
LYNDE,  for  pl'tff  in  error: 

The  sixth  and. eighth  sections  of  the  act,  upon  the  subject  of 
appeals,  Stal.  Wis.  333,  are  directory  and  not  imperative.  It  is 
made  the  duty  of  the  justfce  to  file  the  papers  on  or  before  the 
first  day  of  the  term,  and  until  he  does  so;  the  appellant  cannot 
have  the  cause  entered,  for  there  is  nothing  before  the  court  to 
be  entered.  If  the  justice  neglects  his  duty  and  delays  the  mat- 
ter, the  appellant  ought  not  to  suffer  for  it.  The  statute  gives 
the  court  the  power  to  order  appeals  to  be  entered  otherwise  than 
is  therein  directed.  This  was  intended  to  embrace  cases  like  the 
present,  where  the  justice  brings  in  the  papers  after  the  second 
day,  and  the  appellant  asks,  before  any  motion  is  made  by  the  ap- 
pellee, to  have  the  appeal  entered.  The  rigid  practice  that  has 
been  enforced  in  this  case,  ought  only  to  be  adopted  in  cases 
•where  the  appellant  does  not  appear,  or  take  any  steps  to  bring 
his  appeal  forward,  and  should  not  be  applied  when  he  has  been 
guilty  of  no  laches  and  the  delay  has  been  occasioned  by  the  ne- 
glect of  the  justice.  In  New  York,  it  has  been  decided,  that 
though  the  justice  does  not  file  his  return  until  after  the  first  day 
of  the  term  next  after  the  appeal,  they  ought  not  to  quash  it,  but 
proceed  thereon  when  the  return  comes  in.  Exparte  Kellogg,  3 
Co  wen's  Rep.  372. 

Opinion  of  the  Court,  by  Judge  IRVIN: 

This  cause  came  up  on  error  to  the  District  Court  of  Milwau- 
kee county. 

The  suit  was  brought  before  a  justice  of  the  peace  to  recover 
Compensation  for  the  use  of  horses.  Before  the  justice,  defend- 
ant made  no  defence,  but  after  judgment  given  for  plaintiff,  took 
an  appeal  to  the  District  Court.  The  justice  gave  judgment  on 
the  12th  of  February,  1842.  The  District  Court  commenced  on 
the  13th  of  June,  1812,  and  to  which  court  the  justice  made  his 
return  the  18th  of  June,  when  the  counsel  for  the  appellant  moved 
the  court  to  have  the  same  entered,  which  was  not  so  ordered, 
the  clerk  merely  marking  it  filed.  On  the  first  day  of  July  of 
the  same  term,  the  appellee,  by  his  counsel,  moved  the  court  to 


REPORTS.  147 

have  the  appeal  entered,  which  was  done,  and  judgment  in  his  fa- 
vor given,  for  the  sum  in  which  the  justice  had  given  judgment, 
together  with  interest,  and  twelve  per  centum  damages;  to  all 
which  the  appellant  objected. 

By  the  Gth  section  of  the  9th  article,  page  333  of  the  Statutes 
of  Wisconsin,  the  justice  is  required  to  file,  on  or  before  the  first 
day  of  the  term  of  the  District  Court  next  after  the  appeal,  in 
the  office  of  the  clerk  of  said  court,  a  transcript  of  his  docket,  to- 
gether with  all  the  papers  in  the  case  in  which  the  appeal  is  ta- 
ken. By  the  8th  sec.  the  appellant  shall  cause  an  entry  to  be 
made  of  the  appeal  on  or  before  the  second  day  of  said  term,  un- 
less otherwise  ordered  by  said  court;  "provided,  that  if  the  appel- 
lant shall  fail  or  neglect  to  enter  the  appeal  as  aforesaid,  the  ap- 
pellee may  have  the  same  entered,  at  any  time  during  that  or  some 
succeeding  term,  and  the  judgment  of  the  court  below  shall  be 
entered  against  the  appellant  for  the  same,  with  interest,  and 
twelve  per  centum  damages  and  the  costs  of  both  courts." — 
When  the  justice  failed  to  make  return,  as  the  law  required,  the 
appellant  might,  on  or  before  the  second  day  of  the  term,  have 
taken  a  rule  against  him  to  make  return,  upon  the  coming  in  of 
which,  he  could  then  have  proceeded  in  the  suit;  but  failing  as  he 
did,  until  the  time  at  \vhich_the  justice  made  return,  the  right  had 
accrued  to  the  appellee,  to  have  and  take  the  judgment  which  he 
obtained  at  that  term  of  the  court.  The  District  Court  commit- 
ted no  error,  and  the  judgment  therein  given  must  be  affirmed 
with  costs. 

and  WELLS,  for  pl'tff  in  error. 


148  REPORTS- 


JOEL  HYDE,^Jfm  error,     t 

vs.  >  Error  to  Rock  county. 

JOB  BARKER,  dt/'t  in  error,} 

AFTER  evidence  has  been  given  on  the  part  of  the  plaintiff,  pertinent  to 
the  issue,  the  court  has  no  power  to  order  a  peremptory  non-suit  against 
the  will  of  the  plaintiff;  and  a  justice  of  the  peace  cannot,  in  such  case, 
non-suit  the  plaintiff  although  he  is  trying  the  cause  without  a  jury. 

Hyde  brought  suit  against  Barker  before  a  justice  of  tbe  peace 
in  Rock  county,  on  an  account  for  work  and  labor.  The  plaintiff 
filed  a  written  declaration  in  assutnpsit,  containing  three  counts. 
The  first  count  was  on  a  special  contract  made  in  August,  1841, 
to  build  ii  corn  b:un  for  the  defendant  for  $24 — the  work  to  be 
done  by  ihc  20lh  October,  1841 ;  the  second  count  was  on  a  sim- 
ilar contract,  the  work  lo  be  done  in  a  reasonable  time;  and  the 
third  was  for  work  and  labor  generally.  The  defendant  pleaded 
the  general  issue.  The  case  wns  tried  by  a  justice  without  a 
jury,  and  on  the  trial  the  plainliff  proved  that  he  had  done  a  prin- 
cipal portion  of  the  work  on  the  contract,  but  did  not.  prove  that 
it  was  completed  as  set  out  in  the  first  count  in  the  declaration, 
and  attempted  to  prove  what  the  work  was  worth,  which  was  ob- 
jected to  by  the  defendant,  and  the  objection  sustained  by  the 
justice.  The  defendant  moved  for  a  nonsuit  on  the  ground  that 
a  special  contract  had  been  set  up,  and  the  plaintiff  had  failed  to 
prove  performance  on  his  part.  The  plaintiff,  pending  the  motion, 
asked  leave  to  withdraw  the  first  count  in  the  declaration  and  let 
the  evidence  apply  on  the  other  counts,  which  the  justice  refused, 
and  gave  judgment  of  nonsuit  against  the  plaintiff. 

The  case  was  taken  into  the  District  Court  by  certiorari,  where 
the  judgment  of  the  justice  was  affirmed,  and  Hyde  has  prosecu- 
ted this  writ  of  error  to  reverse  the  judgment  of  the  District 
Court. 

J.  II.  KNOWLTON,  for  pPtff  in  error: 

The  justice  ought  to  have  received  evidence  of  the  value  of 
the  work  done,  under  the  common  count,  although  the  proof  may 
have  failed  to  establish  a  special  contract,  or  to  show  performance 
by  the  plaintiff.  Although  there  be  a  special  contract,  and  the 
plaintiff  has  fuilcd  to  perform  it  in  full,  or  perform  it  so  negligent- 


REPORTS.  149 

}y  (hat  a  recovery  cannot  be  had  upon  it;  yet  if  the  defendant  has 
received  any  benefit  from  it,  he  must  pay  what  the  work  is  reason- 
ably wor'.h.  2  Phil.  Ev.  by  Cowen  &  IMI,  109,  note  311,  page 
103;  2  Starkie,  945;  20  English  Com.  Law  Rep.  120;  7  do. 
401;  23  do.  105;  1  Comyn  on  Contracts,  5,  0;  Ilayward  vs. 
Leonard.!  Pick.  LSI ;  Smith  vs.  The  First  Congregational  Meet- 
ing House  in  Lowell,  8  Pick  178. 

NOGULK,  for  deft  in  error: 

There  are  cases  where  a  plaintiff  may  recover  for  the  partial 
performance  of  a  specified  contract:  But  where  the  contract  is 
to  do  a  piece  of  work,  in  a  particular  manner  and  by  a  given  time, 
the  plaintiff  cannot  recover  fur  a  partial  performance,  unless  the 
defendant  lias  waived  a  complete  performance;  14  Mass.  Rep. 
2G8;  2  Starkie,  942  and  notes. 

Whatever  may  be  the  opinion  of  (he  Court  as  to  the  errors,of 
the  justice,  a  judgment  of  non-suit  ought  not  to  be  reversed. — 
The  plaintiff  was  not  barred  from  proceeding  de  novo,  and  the 
case  in  this  court,  is  a  mere  question  of  costs. 

WHITO.V,  in  reply : 

If  the  judgment  of  the  justice  was  erroneous,  then  the  judg- 
ment of  the  District  Court  ought  to  be  reversed.  The  evidence 
shows  an  acceptance  of  the  work,  and  if  it  was  not  done  according 
to  the  contract,  the  plaintiff  is  entitled  to  recover  as  much  as  it  is 
worth.  This  must  be  the  decision  if  the  principles  laid  down  in 
the  case  read  from  7  Pickering  are  applied. 

Although  the  case  is  a  small  one,  the  principles  involved  are 
of  great  importance,  and  entitled  to  a  deliberate  consideration. 

Opinion  of  the  Court,  by  Judge  MILLER: 

This  case  came  before  the  District  Court  of  Rock  county,  by 
cerliorari  to  a  justice  of  the  peace.  The  error  complained  of  was 
that  the  justice,  after  hearing  the  testimony  on  part  of  the  plain- 
tiff in  support  of  the  claim  and  pertinent  to  the  issue,  on  motion 
of  the  defendant,  for  reasons  therein  stated,  entered  a  non-suit 
against  the  plaintiff 's  consent.  This  judgment  was  affirmed  by 
the  court;  following  in  this  particular,  the  practice  in  the  Slate  of 
New  York.  That  practice,  we  do  not  recognize  in  the  District 
Court,  and  consequently,  the  same,  if  not  belter  reasons,  should 
prevent  it  before  a  justice.  If  it  were  tolerated,  serious  injus- 
tice may,  in  some  instances  be  done.  The  Supreme  Court  of  the 
United  States  have  repeated  the  rule  so  frequently,  that  after  per- 


150  REPORTS. 

tinent  evidence  is  received  on  part  of  plaintiff,  the  court  has  no 
authority  to  order  a  peremptory  nop-suit,  against  the  will  of  the 
plaintiff,  on  the  triaj  of  the  cause  before  the  jury,  that  the  point 
is  not  now  to  be  questioned.  The  plaintiff  may  agree  to  a  non- 
suit, but  if  he  do  not  choose,  the  Court  cannot  compel  him  to  sub- 
mit to  it.  Elmcre  vs.  Grymes,  1  Peters,  471 ;  Dcwolfvs.  Raband 
and  others,  1  Peters,  497;  Crane  vs.  The  Lesee  of  Morris  and 
others,  6  Peters,  598. 

This  case  was  disposed  of  by  the  justice.  He  was  bound  to 
the  same  rule,  as  if  there  had  been  a  jury  cmpannelled.  As  the 
evidence  comes  up  imperfectly,  it  might  be  unsafe  to  risk  an 
opinion,  on  the  points  of  law  attempted  to  be  raised  upon  the  re- 
cord, and  the  Court,  for  this  reason,  will  not  attempt  their  consi- 
deration. 

The  judgment  must  be  reversed,  and  so  certified  to  the  District 
Court  of  Rock  county,  with  orders  to  the  said  district  court  to  re- 
verse the  judgment  of  the  justice. 

J.  H.  KNOWLTON  and  WIIITON,  forpl'tff  in  error. 

NOGGLE,  for  deft  in  error. 


GEORGE  II.  COX,  plaintijfin  error,  } 

vs.  >  Error  to  Grant  county. 

3  AMES  G  ROSIIONG,  et  al.  drfendanti  in  error.  \ 

TIIF.  slntutn  to  prevent  forcible  entries  and  detainers  provides  for  two 
classes  of  cases;  an  unlawful  and  forcible  entry  and  a  forcible  detainer, 
and  a  lawful  and  peaceable  entry  and  unlawful  detainer;  and  in  proceed- 
ing under  the  statute,  the  complaint  must  state  a  case  of  one  or  the  other  of 
these  cl.-isses.  A  complaint  for  a  forcible  detainer,  without  alledging  a  for- 
cible entry,  is  bad. 

The  complaint  must  describe  the  premises  with  reasonable  certainty ;  and 


where  the  comj 
piece  of  land  o 
owned  by  cert; 
tainty  of  descr 
Where  the  cc 


aint  describes  the  land  as  a  range  of  lead  ore  and  a  strip  or 
each  side  running  easterly  and  westerly  across  the  land 
in  persons  in  a  particular  section,  it  is  bad  for  the  uncer- 
ption. 
nplaint  is  defective,  the  defendant  does  not  waive  the  ob- 


jection  by  going  to  trial,  but  he  may  make  it  at  any  stnge  of  the  proceed- 
ings. 


REPORTS.  151 

In  proceedings  in  forcible  entry  and  detainer,  the  provisions  of  the  sta- 
tute must  be  strictly  pursued. 

Justices'  courts  are  not  couris  of  record,  and  do  not  proceed  according 
to  the  course  of  the  common  law,  and  so  far  as  their  powers  arc  concerned, 
they  are  confined  strictly  to  the  authority  given  them  by  statute.  They 
can  take  nothing  hy  implication,  but  must  show  that  the  power  which  they 
exercise  is  expressly  given  to  them  in  every  instance. 

Where  a  cause  has  been  removed  from  one  justice  to  another,  and  the 
parties  proceed  to  trial  wiihout  objecting  to  the  justice  to  whom  the  case 
was  sent,  it  is  too  late  after  the  trial  to  object  because  he  was  not  the 
nearest  justice  to  the  one  before  whom  the  cause  originated. 

In  April,  1842,  Cox  commenced  a  proceeding  in  forcible  detainer 
against  James  Groshong  and  others,  before  Samuel  Tompkins,  a 
justice  of  the  peace  in  Grant  county.  The  complaint  stated  that 
Cox  was  "  the  owner  of,  and  justly  entitled  to  the  possession  of, 
the  undivided  one-fourth  part  of  a  certain  range  of  lead  ore  and  a 
strip  or  piece  of  land  on  each  side,  running  easterly  and  westerly 
across  the  land  hereinafter  described,  and  the  right  of  searching 
and  digging  for  lead  ore  thereon,  situate  on  the  lands  now  owned 
by  James  Groshong,  Jonathan  Craig,  and  said  Cox,  in  section  se- 
venteen, township  No.  four  north,  of  range  No.  three  west,  in  said 
county  of  Grant."  "That  one  James  Groshong,  Jefferson  Gro- 
shong, and  one  Stone,  did,  on  or  about  the  first  day  of  February, 
1842,  wrongfully,  and  without  lawful  authority,  enter  into  and  upon 
the  said  undivided  one-fourth  part  of  the  said  range  of  lead  ore, 
and  the  said  strip  of  land  and  the  right  of  searching  fur  lead  ore 
thereon,  and  took  possesion  of  the  same,  against  the  right  of  the 
complainant,  and  have,  from  thence  hitherto,  wrongfully,  unlaw- 
fully, with  force  and  arms,  with  a  strong  hand  and  multitude  of 
people,  detained  the  possession  thereof  from  the  said  complain- 
ant." 

Process  was  issued  upon  the  complaint,  and  returned  to  the  25th 
April,  on  which  day,  on  the  application  of  James  Groshong,  one  of 
the  defendants,  the  case  was  adjourned  to  the  30th  April.  It  ap- 
pears that  upon  this  application  the  justice  first  adjourned  the  cause 
to  the  Glh  May,  but  immediately  afterwards  his  attention  was  di- 
rected to  the  statute  upon  the  subject,  from  which  he  considered 
that  he  had  not  the  power  to  adjourn  the  cause  for  so  long  a  time, 
when  he  recalled  the  parties  and  witnesses,  and  notified  them  lhat 
the  adjournment  was  to  the  30th  April,  and  that  not  more  than  fif- 
teen minutes  had  elapsed  fiom  the  time  of  first  fixing  the  adjourn- 
ment. 

On  the  30th  April,  Jefferson  Grosliong,  one  of  the  defendants, 


152  REPORTS. 

applied  for  and  obtained  a  change  of  venue  from  before  Justice 
Tomkins,  who  immediately  transmitted  the  cause  to  Jeremiah 
Spencer,  as  the  nearest  justice  qualified  to  act.  Spencer  was  at 
that  time,  accidentally  in  Lancaster,  where  Tnmpkins  was  holding 
his  court,  but  his  residence  was  not  so  near  as  that  of  some  other 
justices  in  ihe  county.  Spencer  immediately  proceeded  with  the 
trial  of  the  cause,  and  empannelled  ihe  same  jury  tint  had  been 
summoned  before  Tompkins.  Before  the  trial  commenced,  the 
defendants  filed  before  Justice  Spencer  an  affidavit  for  a  continu- 
ance, setting  out,  as  the  grounds,  the  absence  of  a  material  wit- 
ness, who  resided  in  Illinois:  that  due  diligence  had  been  used 
to  procure  him;  that  Jarnes  Groshong  was  then  gone  for  him;  and 
that  the  defendants  believed  if  an  adjournment  was  granted  for 
seven  days  the  witness  could  be  procured.  The  motion  was  over- 
ruled by  the  Justice,  and  the  trial  proceeded.  The  jury  returned 
a  verdict  against  the  defendants,  upon  which  the  Justice  rendered 
a  judgment,  and  awarded  a  writ  of  restitution. 

The  defendants  took  the  case  into  the  District  Court  by  writ  of 
certiorari,  and  assigned  the  following  errors  in  the  proceedings 
before  the  Justices: 

1.  For  want  of  a  legal,  full,  and  sufficient  complaint  in  the 
law;  a  legal,  full,  and  sufficient  summons  thereon. 

2.  For  that  the  said  Justice  Tompkins  erred,  when  after  he 
had,  on  the  application  of  the  defendants,  adjourned  the  said  ac- 
tion over  to  the  Gth  of  May,  and  dismissed  the  jury,  witnesses,  and 
parties,  in  setting  aside  that  continuance,  and  compelling  the  de. 
fendants  to  answer  on  the  30th  of  April. 

3.  For  that  the  said  Justice  Tompkins  erred,  when  he  changed 
the  venue  from  before  himself  to  Spencer,  not  the  nearest  justice 
to  the  place  of  holding  the  court  of  said  Tompkins,  or  his  place  of 
residence,  and  when  there  were  other  justices  residipg  six  rnilea 
nearer  the  said  Tompkins. 

4.  For  that  the  said  Justice  Spencer  erred,  when  he  took  cog- 
nizance of  the  case  at  the  place  he  did,  without  his  docket,  and 
tried  it  by  the  same  persons  whom  the  said  Tompkins  had  sum- 
moned to  sit  as  jurors  in  the  case,  without  issuing  a  new  process 
for  a  jury. 

5.  For  that  the  said  Justice  showed  himself  to  be  a  partial  jus-4 
tice,  from  the  mnnncr  in  which  he  procured  the  case  to  be  brought 
before  himself  on  the  change  of  venue  from  before  said  Tompkins. 


REPORTS.  153 

6.  For  that  the  said  Justice  Spencer  erred,  in  not  giving  the 
defendants  a  continuance  on  their  application  on  affidavit  filed,  the 
said  Justice  admitting  that  the  causes  entitled  them  to  a  contin- 
uance. 

7.  For  that  the  said  Justice  Spencer  erred,  in  not  having  hig 
docket  present,  and  reducing  his  proceedings  and  decisions  to  wri- 
ting. 

8.  For  that  the  jury  erred  in  giving  a  verdict  in  favor  of  the 
plaintiff,  the  testimony  not  having  supported  his  complaint;  and 
the  justice  erred  in  rendering  judgment  on  the  verdict. 

9-     For  that  the  whole  proceedings  were  illegal  and  void. 

It  appears  from  the  return  of  Justice  Spencer,  that  this  was  the 
first  case  which  he  ever  tried;  that  he  had  no  docket  al  the  time, 
and  did  not  then  reduce  the  proceedings  and  decisions  to  writing; 
but  when  he  went  home  he  took  down  the  material  parts,  and 
made  up  his  docket  as  soon  as  possible. 

At  the  March  term,  1843,  tlie  District  Court  reversed  the  judg- 
ment of  the  justice;  and  the  cause  is  brought  into  this  court  by 
the  complainant,  Cox,  on  writ  of  error  to  reverse  the  judgment  of 
the  District  Court. 

EASTMAN,  for  plaintiff  in  error: 

The  objections  that  were  taken  to  the  complaint  and  summons 
are  not  tenable.  They  are  formally  drawn,  and  the  complaint  sets 
out  the  plaintiff's  case  with  legal  certainty. 

The  change  of  time  in  the  continuance  by  Justice  Tompkins 
was  right  and  proper.  The  statute  gives  him  no  power  to  con- 
tinue a  cause  for  so  long  a  period  as  was  first  fixed  upon,  and  on 
discovering  his  error,  within  fifteen  minutes,  he  changed  it  to  a 
time  within  his  authority,  and  notified  the  parties  and  witnesses  of 
the  alteration,  and  1,0  injury  resulted  to  any  one.  It  was  the  duty 
of  the  Justice  to  correct  the  error  before  the  parties  had  sepa- 
rated. 

When  the  venue  was  changed,  Spencer  was  the  nearest  justice 
in  fact  to  Tompkins.  He  was  in  Lancaster  accidentally  on  busi- 
ness, and  was  qualified  to  try  the  cause.  A  justice  is  not  confined 
to  any  particular  district,  but  his  authority  is  co-extensive  with  the 
county,  and  he  can  hold  his  court  at  any  place  within  the  county. 
In  this  respect,  the  statu'e  was  fully  complied  with. 

Tompkins  was  bound  by  law  to  transmit  all  the  papers  in  the 
case  to  Spencer,  and,  of  course,  the  venirie  facias  and  return. 

20 


154  REPORTS. 

Spencer  was  bound  to  proceed  with  the  cause  as  though  it  had 
been  commenced  before  him;  he  therefore  had  to  take  up  the 
case  precisely  where  Turnpkins  left  off,  with  the  jury  that  had 
been  summoned.  He  had  no  right  to  discharge  the  jury. 

The  minutes  taken  down  by  Justice  Spencer  to  enable  him  to 
make  up  his  docket,  were  sufficient.  The  record  was  properly 
made  up  as  soon  as  it  could  be  done,  and  h  is  not  vitiated  be- 
cause he  had  not  previously  procured  a  docket  and  wrote  the  pro- 
ceedings in  it  at  length  as  they  occurred. 

The  refusal  of  Spencer  to  continue  the  cause  cannot  be  re- 
garded as  error.  The  question  was  one  for  his  discretion,  and  if 
he  thought  the  grounds  not  sufficient,  the  court  cannot  se"t  aside 
the  proceedings  for  that  cause;  especially  when  it  is  borne  in  mind 
that  this  was  the  second  application^)  continue  the  cause  by  the 
game  parties,  and  the  record  does  not  show  any  steps  taken  to  pro- 
cure the  teslimony  of  the  absent  witness. 

The  court  will  find,  upon  examining  the  record,  that  evidence 
fully  supports  the  verdict  and  judgment.  Upon  this  point,  the 
courts  require  a  stronger  case  to  reverse  a  judgment  than  they 
would  to  grant  a  new  trial;  and  in  this  case,  according  to  authori- 
ty, the  court  could  not  grant  a  nesv  trial,  on  the  ground  that  the 
verdict  was  against  evidence.  2  Salk.  050;  id.  654;  id.  640,647. 
Cook  vs.  Berry,  I  Wilson,  93.  Graham  on  New  Trials,  10,  15, 
16,  35,  168,  1U4,  210,  281.  3  Blackford,  305.  Sieplicn  on 
Plead.  147.  1  Scammon  538,  539.  2  Scarnmon,  120,  130. 

DUAN,  for  defendants  in  error: 

The  complaint  in  this  case  is  bad,  because  it  does  not  suffi- 
ciently describe  the  premises.  The  description  should  be  so  cer- 
tain that  the  officer  in  making  restitution  can  know  what  to  restore. 
It  is  also  bad  for  not  alledging  force  in  the  entry.  The  statute 
does  not  authorize  proceedings  fur  a  forcible  detainer  where  the 
entry  has  been  peaceable. 

After  Justice  Tompkir.s  had  adjourned  the  cause  to  the  6th  of 
May,  he  had  no  right  to  fix  an  earlier  day  for  the  trial,  without  the 
consent  of  the  defendants.  When  the  continuance  was  once  made, 
he  had  no  more  power  over  the  case,  until  the  time  of  trial  ar- 
rived. The  statute  docs  not  prohibit  a  justice  from  continuing  a 
case,  for  cause  shown,  for  a  longer  period  than  six  d;iys;  it  only 
limits  him  to  that  time  when  he  continues  it  of  his  own  volition. 

The  meaning  and  intention  of  the  law  in  changing  the  venue  of 


REPORTS.  155 

causes  before  justices  of  the  peace  is,  lhat  the  case  shall  be  sent 
to  tho  nearest  resident  justice,  (acts  of  1840,23,)  and  not  thnta 
remote  justice  who  may  be  accidentally  present  shall  lake  up  the 
case  and  dispose  of  it. 

It  was  error  in  Justice  Spencer  to  empannel  the  same  jury  that 
had  been  summoned  before  Justice  Tornpkins.  Although  the  law 
requires  the  pnpcrs  to  be  transferred,  so  as  to  place  the  cause 
properly  before  the  new  justice,  it  does  not  authorize  the  transfer 
of  the  jury.  Ho  should  hive  appointed  a  time  and  place  for  the 
trial,  and  issued  a  new  veniric  facias  accordingly. 

The  defendants  were  entitled  to  the  continuance  asked  for  be- 
fore Justice  Spencer.  They  did  not  expect  a  trial  on  that  day,  and 
were  not  bound  to  be  prepared  for  it.  They  appeared  for  the  pur- 
pose of  changing  the  venue,  which  they  knew  they  hud  a  right  to 
do  under  the  law,  and  they  had  a  right  to  expect  that  a  time  and 
place  would  be  fixed  for  the  trial,  of  which  the  parties  would  ba 
notified.  But  the  affidavit  shows  sufficient  grounds.  It  was  not 
necessary  to  have  a  subpena  issued  for  a  witness  who  resided  out 
of  the  Territory,  for  it  could  not  reach  him.  One  of  the  defend- 
ants was  gone  for  the  witness,  and  they  believed  that  he  could  be 
produced;  and  this  was  all  the  diligence  required  by  the  law.  1 
Leigh,  1.  4  Hen.  &  Mun.  157. 

It  will  be  found  that  the  verdict  was  clearly  contrary  to  the  evi- 
dence. The  complainant  failed  to  prove  his  claim  as  he  set  it 
out;  and  there  was  not  a  particle  of  evidence  showing  the  use  of 
any  force  by  the  defendants.  Force,  actual  and  not  constructive, 
must  be  proven  to  sustain  the  complaint.  3  Bacon's  Ab.  716. 

Opinion  of  the  Court,  by  Judge  MILLEK: 

This  case  was  commenced  under  the  act  to  prevent  forcible  en- 
tries and  detainers  by  George  H.  Cox,  against  James  Groshong, 

Jefferson  Groshong,  and  Stone,  before  a  justice  of  the 

peace  of  Grant  county.  A  verdict  and  judgment  were  rendered 
against  the  said  defendants  before  the  Justice,  which  they  removed 
to  the  District  Court  of  said  county,  by  certiorari,  where  the  said 
judgment  was  reversed;  upon  which  decision  of  the  said  District 
Court  the  said  Cox  sued  out  a  writ  of  error. 

The  examination  of  the  record  will  require  us  to  consider  such 
of  the:  exceptions  filed  in  the  District  Court,  to  the  proceedings  be- 
Fore  the  Justice  as  may  be  material. 

The  first  exception  filed  was  to  the  complaint. 


156  REPORTS. 

The  complaint  represents,  that  "  James  Groshong,  JefFersoa 
Groshong,  and  one  Stone,  whose  Christian. name  is  unknown  to 
the  complainant,  did,  on  or  about  the  first  day  of  February,  1842, 
wrongfully  and  without  lawful  authority,  enter  into  and  upon  the 
said  range  of  lead  ore  and  the  said  strip  of  Innd,  and  the  right  of 
searching  and  digging  for  lead  ore  thereon,  and  t;ike  possession  of 
the  same,  against  the  right  of  the  said  complainant,  and  have,  from 
thence  hitherto,  wrongfully,  unlawfully,  forcibly,  with  force  and 
arms,  with  strong  hand  and  multitude  of  people,  detained  the  pos- 
session thereof  from  ihe  said  complainant,  and  still  do,  wrongfully, 
unlawfully,  forcibly,  and  with  strong  hand  and  force  and  arms,  and 
multitude  of  people,  keep  out  and  detain  from  said  complainant,  the 
possession  thereof,  contrary  to  the  statute  and  the  laws  of  the  said 
Territory,  after  demand  of  possession  thereof  by  complainant;" 
and  prayed  that  summons  might  issue  fora  forcible  detainer. 

By  the  act  upon  which  this  proceeding  was  founded,  any  jus- 
tice shall  have  authority  to  inquire  by  a  jury,  as  well  against  those 
who  make  unlawful  and  forcible  entry  into  lands,  tenements,  and 
Other  possessions,  and  with  a  strong  hand  detain  the  same;  as 
against  those  who,  having  lawful  and  peaceable  entry  into  lands, 
tenements,  and  other  possessions,  unlawfully  detain  the  same. 
By  this  statute,  there  are  two  classes  of  cases  made  cognizable  be. 
fore  the  justice:  first,  an  unlawful  and  forcible  entry  and  detain- 
er; second,  a  lawful  and  peaceable  entry  and  an  unlawful  deiain- 
er.  The  complaint  does  not  come  within  either  class.  It  charges 
that  the  defendants  unlawfully,  and  without  authority,  entered  the 
premises,  while,  if  it  was  desired  to  proceed  for  the  entry,  it 
should  have  charged  that  they  unlawfully  and  forcibly  entered. 
But  was  claimed  by  complainant  a  summons  for  an  unlawful  de- 
tainer merely,  which  comes  under  the  second  class  when  the  en- 
try is  lawful  and  peaceful.  From  this  it  will  appear,  that  this 
complaint  did  not  conform  to  the  statute,  and  for  this  alone,  the 
District  Court  did  right  in  reversing  the  proceedings  before  the 
Justice. 

This  is  a  proceeding  authorized  and  regulated  by  statute,  and 
committed  to  a  tribunal  whose  jurisdiction  and  authority  are  crea- 
ted by  the  statute  alone;  for  these  reasons,  the  provisions  and  di- 
rections of  the  statute  must  be  strictly  pursued.  Justices'  courts 
are  not  courts  of  record,  and  do  not  proceed  according  to  the 
course  of  the  common  law,  and  so  far  as  the  powers  are  concern- 


REPORTS.  157 

ed,  they  are  confined  strictly  to  the  authority  given  them  by  the 
Statute.  They  can  take  nothing  by  implication,  but  must  show 
the  power  which  they  exercise  expressly  given  them  in  every  in- 
stance. Thomas  vs.  Robinson,  3  Wend.  267.  Mills  vs.  Martin, 
19  John.  33.  M'Carty  vs.  Shannon,  3  John.  429.  Bordcn  vs. 
Fitch,  15  John.  140.  Andrews  vs.  Montgomery,  19  Joh.i.  162. 

The  complaint  sets  forth:  "that  the  said  George  H.  Cox  was, 
on  the  first  day  of  January  last,  has  been,  and  still  is,  the  owner  of 
and  justly  entitled  to  the  possession  of  a  certain  range  of  lead  ore, 
and  a  strip  of  land  or  piece  on  each  side  thereof,  twenty-five 
yards  wide  on  each  side,  running  easterly  and  westerly 
across  the  land  hereafter  described,  and  the  right  of  search- 
ing and  digging  for  lead  ore  thereon,  in  section  17,  township  No. 
4  north,  of  range  No.  3.  west,  in  said  Grant  county."  This  would 
also  appear  to  be  too  vague  and  uncertain.  It  does  not  describe 
the  land  by  any  marks,  description,  or  boundaries,  nor  does  it  even 
refer  to  its  location  in  the  section.  It  is  true,  that  a  cour'.  would 
have  a  superintending  power,  which  would  always  be  promptly  ex- 
ercised, in  case  a  plaintiff  would  take  on  a  writ  of  restitution  what 
he  had  not  recovered;  but  it  is  doubtful  whether  a  justice  could 
exercise  it.  We  are  aware  that  it  is  impossible  always  to  describe 
a  tract  of  land  with  so  much  accuracy  as  to  enable  the  sheriff  to  de- 
liver it,  without  some  person  to  show  him,  on  the  ground,  the 
boundaries  alluded  to  in  the  writ;  but,  nevertheless,  the  premises 
must  be  described  with  reasonable  certainty.  See,  on  this  subject 
Burdick  vs.  Norris.2  Watts,  28.  Martinvs.  Martin,  17  Sergt.  &. 
Rawle,  431.  The  Borough  of  Harrisburgh  vs.  Crongle,  3  W.  &, 
S.  460.  Smith  vs.Jcnks,  10  Sergt.  &  Rawle,  153.  Fisher  r*. 
Lorick,  7  Sergt.  &  Rawle,  99. 

The  remaining  exceptions  will  be  disposed  of  together.  The 
justice  is  allowed  to  adjourn,  at  his  discretion,  any  trial  under  the 
act,  not  exceeding  six  days.  This  is  a  very  summary  proceeding, 
which  requires  the  parties  to  make  every  effort  to  procure  their  tes- 
timony and  be  prepared  for  the  trial.  By  the  act  of  1810,  section 
8,  authorizing  ihe  removal  of  causes  from  one  justice  to  another, 
after  the  oath  is  made  by  the  defendant,  the  justice  shall  imme- 
diately transmit  all  the  papers  in  the  case,  to  the  nearest  justice 
qualified  by  law  to  try  a  cause  between  the  parties  in  vhe  suit,  who 
shall  proceed  to  hear  and  determine  said  cause  in  such  manner  as 
if  it  originated  before  him.  In  this  case,  the  parties  made  no  ob- 


158  REPORTS. 

jection  to  Justice  Spencer.  The  papers  were  immediately  trans- 
mitted to  him  by  Justice  Tompkins,  and  the  parties,  without  ob- 
jecting to  his  jurisdiction,  went  to  trial  on  the  same  day  of  the  re- 
moval of  the  cause.  After  this,  it  was  too  late  to  make  the  objec- 
tion that  lie  was  not  the  nearest  justice  to  Justice  Tompkins  qual- 
ified to  act,  if  it  co;ild  be  made  at  any  time. 

The  tri:il  before  Justice  Spencer  did  not  waive  the  errors  in  the 
complaint.  As  we  have  seen  that  the  jurisdiction  of  a  justice 
must  he  made  affirmatively  to  appear,  there  are  no  presumptions 
in  its  f.ivor.  It  was  competent  to  the  defendant,  to  raise  the  ob- 
jections at  any  stage  of  the  proceedings. 

As  the  complaint  is  defective,  and  for  this  reason,  the  judgment 
of  the  Justice  was  correctly  reversed  by  the  District  Court,  it  is 
unnecessary  to  examine  the  questions  raised  upon  the  evidence. 

Judgment  affirmed  with  costs. 

EASTMAN,  for  plaintiff  in  error. 

DUMV,  for  defendant  in  error. 


JAMES  D.  DOTY,  "| 

ALKXANDI-'.lt  J.  IRWIN,  and 

DAVID  JONES,  pl'ffiin  error,  J- Error  to  Dane  county. 

| 
MOSCS  M.  STRONG,  depLin  error.) 

WHERE  a  defendant  is  defaulted  for  want  of  a  pk-a,  and  the  plaintiff 
agrees  to  set  aside  ilic  default  on  condition  that  the  defendant  will  plead  to 
the  merits  and  u'o  to  trial,  a  general  demurrer  to  the  declaration  is  not  such 
a  plea  ns  the  plaintiff  is  bound  to  receive,  and  if  he  objects  to  it,  the  court 
should  not  allow  it  to  be  filed. 

Then;  is  no  rule  of  court  or  of  law  that  limits  the  time  of  returnine  a  de- 
position into  court,  or  directs  by  whom  it  shall  he  delivered ;  and  w  here  a 
deposition  <vas  duly  taken  nml  certified,  and  reum  ed  into  court  by  the 
plaintiff  on  w'msc  !>•  hain't  was  taken  on  the  second  day  of  the  term,  sev- 
eral month*  ;if>cj-  it  u-:is  taken,  it  outfit  n»t  on  that  account  to  he  rejected. 

A  (!(•;, oslii,, n  or  a  witness  should  lie  objected  to  a:  the  lime  of  offering  to 
read  the  deposition  >~  s\var  the  wilni  ?s  :  If  once  rid  mil  ted.  the  court  can- 
not take  either  Irom  the  jury  by  instruction;  though  the  court  may  instruct 
the  jury  to  disregard  evidence  or  testimony  on  the  ground  of  interest  devel- 
oped in  the  trial. 


REPORTS.  159 

Exceptions  to  testimony  taken  in  the  court  below,  will  not  be  considered, 
Unless  the  evidence  is  made  a  ]>:irt  ofilio  record  by  the  hill  of  exceptions. 

Common  curriers  •"•'-•  liable,  upon  their  irencral  iindci'taUinx,  to  '.he  pub- 
lic, lor  ni:','lec!ingur  rrfii-iii.;  to  tr.mspori  ilie  goods  ol  any  person  v.  ho  ap- 
plies to  iliem  with  st.'eli  goods  as  tlu-y  have  iiiidertaken  in  carry,  in  condi- 
tion to  b(!  transported,  at  die  place  designated  for  rcci-ivin,'  thc;n;  and  no 
special  coiiiract  \viili  die  particular  person  so  applying,  is  ntcc^ury  to 
charge  them. 

In  an  action  rr^ainst  common  carriers  upon  their  general  undertaking,  it 
is  necessary  to  lix  upon  them  llicir character  as  such  by  testimony  ;  and  a 
notice  of  ilieir  general  undertaking,  published  by  them  in  a  public  news- 
paper, when  identified  with  the  defendants  by  other  evidence,  is  proper 
testimony  in  the  c-ausc. 

In  an  action  against  common  carriers  for  neglecting  or  refusing  to  carry 
goods,  it  is  not  necessary  to  prove  any  special  undertaking  ol'  the  defend- 
ants. 

Common  carriers  are  liable  for  refusing  to  carry  when  properly  request- 
ed, as  well  as  I'or  negligently  carrying  or  failure  to  carry  after  the  freights 
have  been  delivered  to  them. 

A  refusal  of  the  court  to  instruct  the  jury  upon  abstract  principles  of  law, 
not  presented  in  the  record  or  by  the  facts  in  tke  case,  is  not  error:  arid 
the  court  must  respond  to  the  facts  so  hir,  as  to  decide  whether  a  principle 
of  lnwis  raised  by  the  facts  or  not. 

The  fact  that  no  freight  boats  passed  on  the  line  of  transportation  in 
which  the  common  carriers  were  engaged,  after  the  application  of  the  plain- 
tiff, is  no  de'.'cnce  to  the  action;  if  the  fact  had  been  that  boats  could  not 
possibly  paes  at  the  time  of  the  request,  from  causes  out  of  die  control  of 
the  defendants,  they  would  then  be  excused  for  refusing  to  carry. 

This  was  an  action  of  nssumpsif,  originally  commenced  by 
Strong  against  the  plaintiffs  in  enor,  in  '.lie  Iowa  District  Court. 
The  declaration  contained  two  counts;  the  first  alledging  that  the 
defendants  made  arrangements  to  transport  merchandize  from 
Green  Bay  to  the  Wisconsin  Portage  in  durham  boats  of  thirty 
tons  burthen,  and  that  they  undertook  and  promised  the  public  to 
transport  all  such  merchandize  and  freight  as  they  should  be  rea- 
sonably requested  to  do,  from  Green  Bay  to  the  Portage,  at  one 
dollar  and  Uven'y-five  cents  per  hundred  pounds;  that  on  the  lOlh 
September,  1S39,  the  plaintiff"  had  a!  Green  Bay  a  large  quantity 
of  freight  consisting  of  merchandize  and  household  furniture; 
that  the  defendants  were  then  and  there  requested  by  the  agents 
of  the  plaintiff  to  transport  the  same  to  the  Portage,  but  the  de- 
fendants, not  regarding  their  said  undertaking,  refused  so  to  do; 
that  the  plaintiff"  was  unable  to  get  his  goods  transported  by  wa- 
ter, and  was  compelled  to  leave  them  for  a  long  time  at  Green 
Bay  by  which  they  became  greatly  damaged;  and  that  the  plain- 
tiff was  put  to  great  expense  in  hiring  teams  lo  haul  the  said  goods 
from  Green  Bay  to  the  Portage,  by  all  of  which  he  sustained 
great  damage,  and  averred  that  the  defendants  became  liable  to 
pay  said  damages,  and  that  in  consideration  thereof  they  under- 


160  REPORTS. 

took  and  promised  to  do  so.  The  second  count  was  for  money 
paid,  laid  out  and  expended.  To  this  declaration  the  defendant 
Doty  pleaded  the  general  issue,  before  the  other  defendants  were 
served  with  process.  Upon  this  plea  a  trial  was  had  in  the  Iowa 
District  Court,  and  a  verdict  and  judgment  rendered  in  favor  of 
the  plaintiff.  Doty  sued  out  a  writ  of  error,  and  at  the  August 
term  1840,  of  this  court,  the  judgment  was  reversed,  and  the 
cause  remanded  for  further  proceedings. 

After  this,  the  plaintiff  sued  out  alias  process  and  had  it  served 
upon  Jones  and  Irwin,  and  also  obtained  leave  to  amend  his  de- 
claration, upon  which  he  filed  anew  declaration,  setting  up  a  spe- 
cial undertaking  of  the  defendents  to  carry  the  goods,  &.C.,  and 
averring  special  damages.  To  this  declaration,  the  defendant 
Doty  demurred  generally,  and  the  Court  sustained  the  demurrer, 
to  which  the  plaintiff  excepted.  After  these  proceedings,  the 
cause  was  removed,  by  change  of  venue,  to  Dane  county. 

At  the  November  term,  1841,  of  the  Dane  District  Court,  the 
defendants,  Jones  and  Irwin,  who  had  been  surved  with  process, 
were  in  default  for  want  of  a  plea,  when  the  plaintiff  agreed  to 
waive  the  default  on  condition  that  they  would  plead  to  the  mer- 
its and  go  to  trial;  whereupon  they  oft't-red  to  file  a  general  de- 
murrer to  the  declaration,  which  was  objected  to  by  the  plaintiff 
as  not  within  the  stipulation;  and  on  a  subsequent  day  of  the 
term,  the  court  decided  that  the  demurrer  was  not  within  the 
terms  of  the  agreement  allowing  them  to  plead,  and  that  they 
must  plead  to  the  merits  or  be  defaulted,  upon  which  they  pleaded 
the  general  issue.  At  the  same  term  the  defendant  Doty  filed 
his  affidavit,  stating  that  he  was  not  ready  for  trial  by  reason  of  be- 
ing taken  by  surprise  by  the  deposition  of  Thomas  J.  Ormsbee, 
taken  by  the  plaintiff  and  filed  during  the  term,  and  that  he  be- 
lieved he  could,  if  lime  was  allowed,  disprove  the  testimony  of 
said  Ormsbec.  The  record  does  not  show  that  the  court  made 
any  disposition  of  this  affidavit.  The  cause  was  tried  at  that  terra 
of  the  court,  and  in  the  progress  of  the  trial,  the  defendants  ex- 
cepted to  the  following  decisions  of  the  court: 

1.  In  permitting  the  plaintiff  to  read  in  evidence,  an  advertise* 
ment,  published  in  a  newspaper  purporting  to  be  printed  at  Green 
Bay,  of  the  Fox  River  Navigation  Company,  and  signed  by  the 
defendants,  in  which  they  offered  to  transport  merchandize  as 
charged  in  the  plaintiff's  declaration,  and  a  file  of  said  newspaper 
from  July  to  October,  1838,  containing  said  advertisement. 


REPORTS.  161 

2.  To  the  admission  of  a  certain  written  contract  between  the 
plaintiff  and  Calvin  Frink. 

3.  To  the  admission  of  ascertain  written  contract  between  the 
plaintiff,  and  William  Longdo. 

4.  TD  the  admission  of  ihe  deposition  of  Ormsbee. 

And  also  to  the  decisions  of  the  Court  upon  the  several  instruc- 
tions to  the  jury  asked  for  by  the  defendant,  which  are  embodied 
in  the  opinion  of  the  Court. 

The  contracts  with  Frink  and  Longdo.  were  not  made  a  part  of 
the  bill  of  exceptions. 

The  commission  to  take  the  deposition  of  Ormsbee,  was  issued 
upon  interrogatories  and  cross  interrogatories  on  the  25lh  May, 
184 1,  to  Rutland,  Vermont,  according  to  rules  of  court;  was  ex- 
ecuted on  the  27th  July,  1811,  and  was  produced  in  court  and  filed 
by  the  plaintiff  on  the  9lh  November,  1841,  the  second  day  of  the 
term. 

Ormsbee  testified:  That  he  was  present  at  a  conversation  be- 
tween the  plaintiff  Strong  and  Jones,  one  of  the  defendants,  on 
the  31st  May,  1839,  in  which  Jones  said  that  Doty,  Irwin  and  him- 
self, were  ;ill  jointly  interested  and  engaged  in  transport  ing  property, 
&.C.  up  Fox  River  to  Fort  VVmnebago;  lint  each  depended  so  much 
upon  the  others,  that  little  or  nothing  was  accomplished;  that  33 
soon  as  Strong's  goods  arrived  at  Green  Bay,  he  assured  Frink 
and  those  with  him,  that  they  and  the  goods  should  be  immediate- 
ly sent  up;  that  Frink  and  Longdo  were  constantly  urging  to  be 
sent  off  with  the  goods,  but  they  were  put  off  and  delayed  until 
Strong  came  for  them  in  the  winter:  That  soon  after  the  goods 
of  Strong  arrived  at  Green  Biy,  he  (Jones)  earnestly  and  particu- 
larly tvrgod  Doty  and  Irwin  to  have  them  sent  up  immediately; 
that  he  (Jones)  went  to  Detroit,  and  when  he  came  back  he  was 
surprised  to  find  that  the  goods  had  not  been  sent,  and  learned 
that  the  reason  was,  that  Do'.y  and  Irwin  had  detained  the  boats 
in  hopes  of  getting  a  contract  to  transport  government  troops  to 
Fort  Winnebago,  and  then  it  was  too  Lite;  that  he  (Jones)  had 
found  much  fault  with  Doty  and  Irwin  for  not  sending  up  Strong's 
goods,  and  they  would  all  be  obliged  to  pay  Strong  his  damages; 
that  Strong  then  said  to  Jones,  that  his  original  intention  had  been 
to  send  his  goods  by  the  Ohio  Canal  to  Portsmouth,  and  thence 
to  Galena,  but  at  Buffalo  he  saw  a  Green  Bay  newspaper  contain- 
ing an  advertisement  signed  by  Doly,  JoJies  and  Irwin,  agreeing 

21 


162  REPORTS. 

to  transport  goods  from  Green  Bay  to  the  Portage  for  $1  25  per 
100  pounds,  and  in  consequence  of  that  he  sent  his  goods  to 
Green  B.iy;  that  Jones  upon  being  asked,  said  that  they  had  is- 
sued such  an  advertisement,  and  that  they  intended  to  live  up  to 
it;  that  it  had  made  no  difference  by  Strong's  goods  being  stored 
in  Bruce ''s  ware  house,  their  ware  house  was  nut  finished,  and 
Bruce's  was  the  most  convenient  place  where  they  could  be 
stored;  that  the  arrangement  made  by  Strong  through  Merrill  at 
Fort  Winnebago  to  pay  the  freight,  &.c.  was  entirely  satisfactory, 
and  that  the  goods  were  not  delayed  a  minute  on  that  account,  and 
that  there  was  no  other  reason  for  the  delay  than  as  above  stated; 
that  Strong  then  presented  to  Jones  a  bill  of  damages  amounting  to 
§1700:  when  Jones  said  he  had  no  doubt  of  Strong's  heavy  da  ma- 
nges; that  Doty  and  Irsvin  ought  to  pay  it. and  if  he  had  been  at  home 
instead  of  Detroit,  he  would  have  paid  the  bill  if  the  goods  had  not 
gone;  he  had  no  reason  to  doubt  the  correctness  of  the  bill. 

The  jury  returned  a  verdict  in  favor  of  the  plaintiff  for  $1163 
88  damages,  upon  which  the  District  Court  rendered  judgment. 
To  reverse  this  judgment  the  defendants  below  have  brought  the 
cause  into  this  court  by  writ  of  error,  and  have  assigned  va- 
rious errors  in  the  record  of  the  proceedings,  which  are  noticed 
in  the  opinion  of  the  Court. 

JACKSON,  for  plt'fls  in  error: 

This  case  brings  to  the  consideration  of  the  Court, the  questions 
as  to  who  are  common  carriers,  and  what  are  their  liabilities  ?  As  to 
who  are  to  be  considered  common  carriers,  see  Story  on  Bailment, 
322;  and  as  to  what  arc  their  duties  and  responsibilities,  same  au- 
thority,328.  The  common  carrier  is  not  bound  to  carry  the  goods, 
unless  a  reasonable  compensation  is  paid  or  tendered  to  him.  If  the 
goods  are  not  such  as  he  is  accustomed  to  carry ;  or  not  in  good  con- 
dition; or  if  he  has  no  convenience  to  carry  them;  or  if  they  are 
brought  at  an  unreasonable  time,  he  is  not  bound  to  receive  them. 
The  boxes  of  goods  and  furniture  of  the  plaintiff  below,  were  of 
so  large  a  size  that  they  could  not  be  carried  in  durham  boats; 
they  arrived  at  Green  Biy  too  late  in  the  season  to  be  sent  up 
Fox  River,  and  the  defendants  made  no  more  trips  that  season.— 
A  carrier  is  not  bound  to  receive  goods,  except  when  he  is  about 
to  set  out  on  his  journey. 

The  advertisement  read  from  a  public  newspaper  on  the  trial 
below  fur  the  purpose  of  proving  that  the  defendants  were  coin- 


REPORTS.  163 

mon  carriers,  ought  not  to  have  been  admitted.  To  make  it  evi- 
dence, it  was  necessary  to  prove  that  it  was  published  by  the  di- 
rection or  sanction  of  the  defendants,  in  order  to  identify  them 
with  the  publication.  This  was  not  done.  Onnsbeo's  deposi- 
tion only  piovcs  (he  acknowledgments  of  Jones,  and  that  cannot 
bind  the  other  defendants  until  a  partnership  or  joint  liability  is 
proven. 

The  contracts  between  the  plaintiff  and  Frink,  and  Longdo, 
had  no  legal  connection  with  the  case,  it  matters  not  whether 
the  contracts  are  set  out  in  the  bill  of  exceptions  or  not.  An 
inspection  of  thu  declaration  will  show,  that  no  possible  contract 
of  the  kind  could  have  any  legitimate  application  to  it. 

The  deposition  of  Ormsbce  was  taken  more  than  three  months 
before  it  was  filed,  during  the  greater  part  of  which  time,  the 
plaintiff  had  it  in  his  custody  and  withheld  it  from  the  inspection 
of  the  defendants,  and  brought  it  himself  into  the  court  during 
the  term,  and  on  the  eve  of  the  trial.  Such  a  practice  is  calcula- 
ted to  work  great  injustice  to  the  opposite  party  by  taking  him  by 
surprise  at  so  late  a  period  that  he  cannot  rebut  the  testimony, and 
the  court  ought  to  have  rejected  it  and  discountenanced  the  prac- 
tice. 

The  declaration  alleges  no  undertaking  to  the  plaintiff  to  carry, 
but  a  general  undertaking  lo  the  public  only.  The  plaintiff  is  not 
entitled  to  recover  upon  such  a  declaration,  and  the  objection  may 
be  taken  on  error. 

The  court  below  ought  to  have  given  the  second  instruction 
asked  for  by  the  defendants.  It  sets  forth  an  established  principle 
of  law  as  to  the  commencement  of  the  liability  of  common  car- 
riers. A  delivery  and  acceptance  of  the  goods  to  be  carried,  be- 
gins the  responsibility.  Questions  may  arise  as  to  whether  a  deli- 
very was  made  or  not,  but  in  all  cases  the  question  is  one  of  fact 
for  the  jury,  and  they  must  find  a  delivery  actual  or  constructive. 
Story  on  Bailment,  340;  2Kent,4G8. 

The  fifth  instruction  asked  for  was  proper  to  be  given  as  appli- 
cable to  the  case.  For  every  undertaking  that  is  binding  in  law, 
there  must  be  a  consideration  moving  from  the  other  party.  To 
hold  the  defendants  responsible  on  their  general  liability  as  com- 
mon carriers,  and  that  is  ihc  only  liability  declared  upon,  the  plain- 
tiff ought  to  show  that  he  had  paid  or  tendered  the  price  oi' carry- 
ing the  goods:  2  Kent,  405. 


164  REPORTS. 

In  the  refusal  of  the  court  to  give  the  seventh  and  eighth  in* 
structions, .the  court  assumed  the  facts  and  did  not  leave  (hem  to 
the  jury  to  determine;  this  the  court  has  no  right  to  do.  If  the 
principle  of  law  is  correct,  it  ought  to  have  been  given  in  charge, 
and  the  jury  should  have  determined  the  fuels. 

The  court  refused  to  give  the  ninth  instruction,  on  the  ground 
that  the  undertaking  of  the  defendants  in  the  public  advertise- 
ment, implied  a  contract.  If  the  plaintiff  relied  upon  the  gene- 
ral liability  and  implied  contract  of  the  defendants,  then  all  evi- 
dence of  a  special  contract  or  undertaking  ought  to  have  been 
rejected. 

The  declaration  is  founded  upon  general  liability  only,  and  no 
evidence  of  a  special  undertaking  is  applicable  to  the  issue,  and 
the  court  should  have  given  the  instruction  and  rejected  the  evi- 
dence. Cowen's  Treatise,  96,  97;  2  Starkie,  198;  Clark  vs. 
Smith,  14  Jonh.  Rep.  326. 

DUSN,  for  def  't  in  error: 

The  declaration  is  not  a  common  count  in  its  ordinary  accepta- 
tion, but  is  on  a  special  undertaking  and  so  declared.  It  is  not 
an  implied  promise,  and  the  court  will  infer  that  it  was  supported 
by  proof  when  the  record  does  not  show  the  contrary.  The  de- 
position of  Ormsbee  proves  the  admission  of  the  defendants  be- 
low, that  the  advertisement  was  published  by  their  authority,  that 
they  made  the  contract  for  transportation,  and  that  the  goods  were 
received  by  them.  • 

The  instructions  asked  for  by  the  defendant  were  properly  refu- 
sed, because  they  had  no  connection  with  the  case.  However 
correct  the  principles  of  law  may  be  in  the  abstract,  it  was  no  er- 
ror in  the  court  to  refuse  to  giva  them  to  the  jury,  when  there 
were  no  fuels  in  the  c>ise  to  which  they  could  be  applied. 

The  deposition  of  Ormsbee  was  taken  according  to  the  rules 
of  court  in  every  particular.  The  defendants  say  that  they  were 
surprised  by  the  deposition,  and  object  to  the  time  of  its  filing 
because  they  have  not  time  to  n'jut  it.  If  Ormsbee  had  been 
produced  on  the  stand  and  examined  in  court,  which  might  have 
been  the  case,  they  would  have  had  still  less  time  to  rebut  his  ev- 
idence; and  so  in  the  case  of  every  witness.  There  is  nothing 
in  the  objections  and  they  have  neither  law  nor  reason  for  their 
foundation. 

WUJTON,  in  continuation: 


REPORTS.  1 65 

Tho  advertisement  in  the  newspaper,  taken  in  connection  with 
the  deposition  of  Ormsbce,  was  proper  evidence  for  'tiio  jury. — 
The  deposition  identified  the  publication  with  the  defendants,  who 
acknowledged  it  and  said  lh<  y  intended  to  live  up  to  it.  Take  the 
testimony  altogether, and  it  is  (You  from  doubt. 

There  is  nothing  in  the  record  to  enable  this  court  to  judge 
whether  the  written  contracts  between  Strong  and  Prink,  and 
Strong  and  Longdo,  were  properly  admitted  or  not.  The  con- 
tracts themselves  arc  not  before  the  court,  and  in  the  absence  of 
any  thing  to  show  the  contrary,  the  hw  presumes  thai  the  District 
Court  decided  right  in  admitting  them. 

The  various  instructions  asked  for  by  the  defendants,  are  all  well 
enough  in  a  proper  case,  but  they  do  not  suit  the  facts  of  this 
case.  The  defendants  are  sued  as  common  carriers,  and  that 
character  is  fixed  upon  them  by  the  testimony.  Now  it  cannot 
be  denied,  tint  where  a  person  holds  himself  out  to  the  world  as 
a  common  carrier,  or  agrees  with  a  person  to  transport  goods  from 
one  place  to  another,  and  the  goods  are  deposited  for  him  at  the 
wharf  or  in  a  warehouse  where  he  is  in  the  habit  of  receiving  his 
freights  or  agrees  to  receive  them,  and  then  neglects  or  refuses 
to  carry  them,  that  lie  is  answerable  in  damages.  The  testimony 
shows  that  the  defendants  were  satisfied  with  the  arrangements  to 
pay  the  freight;  that  the  goods  were  deposited  in  Bruce's  ware- 
house at  their  request  or  by  their  agreement,  and  th.it  the  trans- 
portation was  delayed  on  no  other  account  than  the  expectation 
of  getting.a  government  contract.  Then  there  was  no  applica- 
bility in  the  instructions  asked,  and  upon  reference  to  the  testimo- 
ny it  will  be  seen,  lint  they  were  based  upon  a  supposed  state  of 
case  that  did  not  exist;  tho  court  therefore  decided  correctly  in 
refusing  them. 
COLLINS,  in  reply: 

It  is  not  competent  for  one  partner  to  bind  his  co-partners  by 
admissions,  after  the  dissolution  of  the  partnership;  nor  can  the 
declaration  of  one  of  several  defendants  be  received  as  evidence 
against  all  until  a  partnership  or  joint  liability  is  first  proved 
against  all.  The  acknowledgments  of  Jones  in  this  case,  arc  not 
legal  evidence  against  Doty  and  Irwin  to  prove  any  thing. 

If  the  principles  embraced  in  the  instructions  asked  for  are 
principles  of  law,  then  they  ought  to  have  been  given  in  charge 
to  the  jury.  The  court  is  bound  to  give  instructions,  proper  in 


166  REPORTS. 

themselves,  if  they  are  applicable  to  or  connected  with  case.— • 
The  jury  are  the  peculiar  judges  of  the  facts,  and  the  court  must 
give  the  law  to  the  jury.  Where  facts  are  controverted  and  evi- 
dence lias  been  given  to  prove  them  one  way  or  the  other,  the 
court  should,  if  requested,  give  the  instruction  hypothctically, 
predicated  upon  one  or  tiie  oilier  state  of  fuels,  and  it  is  error  for 
the  court  to  assume  that  facts  have  or  have  not  been  proven,  and 
refuse  the  instruction. 

We  do  not  dispute  about  the  liability  of  common  carriers:  But 
when  a  special  engagement  is  made  with  them,  they  are  no  longer 
liable  under  the  general  law.  To  make  them  liable  upon  general 
piinciples  for  not  receiving  and  carrying,  it  is  incumbent  on  the 
plaintiff  to  prove,  that  the  goods  were  such  as  the  carrier  usually 
carried,  that  they  were  in  condition  to  be  carried,  that  they  were 
brought  to  the  phce  where  the  carrier  usually  received  his  freights, 
and  that  the  price  was  paid  or  tendered ;  and  that  the  carrier,  with- 
out any  reasonable  excuse,  refused  to  take  them.  These  are 
principles  that  cannot  be  denied;  apply  them  to  this  case  and  there 
has  been  a  total  failure  of  the  plaintiff  (o  make  out  his  cause  of 
action;  and  to  supply  the  defect  he  has  introduced  evidence  to 
prove  special  engagements  and  undertakings.  It  is  said  that  we 
complain  that  the  plaintiff  proved  too  much:  Such  is  the  truth. 
The  only  issue  in  the  case  is  upon  a  general  count  against  the  de- 
fendants on  their  undertaking  to  the  public,  upon  their  legal  lia- 
bility for  refusing  to  receive  and  carry  the  goods;  therefore,  evi- 
dence of  a  special  contract  did  not  support  the  declaration;  the 
special  contract  suspended  and  superseded  the  implied  contract 
on  the  general  liability,  and  whenever  it  was  proven,  the  plaintiff 
ought  to  have  been  non-suited.  The  whole  of  Ormsbee's  depo- 
sition, relates  to  special  engagements,  and  ought  to  have  been  re- 
jected, because  it  does  not  apply  to  the  issue.  The  plaintiff  can- 
not sustain  his  action  upon  general  liability  by  proving  a  special 
contract  when  there  is  but  one  count  in  his  declaration. 
Opinion  of  the  Court,  by  Chief  Justice  DUNN: 
Error  is  prosecuted  in  this  case  to  reverse  the  decisions  and 
opinions  of  the  District  Court  of  Dane  County,  on  the  various 
grounds  [(resented  in  the  assignment  of  errors.  The  declaration 
of  Strong,  plaintiff  in  the  court  below,  alleges:  "That the  defend- 
ants (who  arc  plaintiffs  in  error)  made  arrangements  on  or  about 
the  2Gih  May,  1S3S,  at  Green  Bay,  in  the  county  of  Brown,  and 


REPORTS.  167 

Territory  of  Wisconsin,  to  transport  merchandize  from  said  Green 
Bay  to  a  place  called  the  Wisconsin  Portage  at  or  near  Fort.  Win- 
nebago,  in  the  county  of  Portage,  in  said  Territory,  in  durham 
boats  of  thirty  tons  burthen,  and  that  they  then  and  there  under- 
took, assumed  and  promised  to  the  public,  to  transport,  for  the 
sum  of  one  dollar  and  twenty-five  cents  per  hundred  pounds, 
from  Green  B;iy  aforesaid,  to  the  Wisconsin  Portage  aforesaid,  all 
sucli  merchandize  or  freight,  as  they  should  thereafter  reasonably 
be  requested  to  do:"  And  the  said  plaintiff  further  averred  in 
his  s:iid  declaration,  "that  afterwards,  on  the  10th  day  of  Septem- 
ber, 1839,  at  Green  Bay  aforesaid,  he  then  and  there  had  a  largo 
]uantity  of  freight,  consisting  of  household  furniture  and  mer- 
chandise, of  the  weight  of  twelve  thousand  pound?,  and  that  the 
defendants  were  then  and  there  requested  by  the  agents  of  the 
plaintiff  to  transport  the  same  from  Green  Biy  aforesaid  to  the 
Wisconsin  Portage  aforesaid,  but  the  said  defendants,  not  regard- 
ing their  said  undertaking,  refused  so  to  do;  to  the  damage  of  the 
plaintiff,"  &c.  &.C.,  alleging  special  damage.  The  general  issue 
was  pleaded,  and  issue  being  joined,  the  parties  proceeded  to 
trial  in  the  said  District  Court,  at  the  November  term  thereof, 
1841.  During  the  progress  of  the  trial,  many  exceptions  were 
taken  to  the  opinions  of  the  court,  which  will  be  considered  in 
their  order. 

The  last  error  assigned  to  an  opinion  of  the  court,  on  a  question 
which  had  arisen  before  issue  joined,  for  the  sake  of  oider,  will 
be  first  considered.  It  is  insisted  by  the  plaintiffs  in  error,  that 
"  the  court  erred  in  refusing  to  entertain  the  demurrer  filed  by 
the  said  Jones  and  Irwin  to  the  declaration  of  the  said  plaintiff 
below  at  the  November  term  of  the  said  District  Court."  To  un- 
derstand this  supposed  error,  it  is  necessary  to  consult  the  record 
embracing  this  part  of  the  proceeedings  in  the  case.  From  the 
record  it  appears,  that  at  the  said  November  term,  two  of  the  de- 
fendants below,  Jones  and  Irwin,  were  in  an  attitude  to  be  de- 
faulted for  want  of  a  plea  under  a  rule;  that  the  plaintiff  below 
waived  his  right  to  a  default,  upon  the  terms  that  the  said  defend- 
ants should  plead  to  the  merits  and  proceed  to  trial.  The  de- 
fendants, under  this  waiver,  filed  their  general  demurrer,  to  which 
the  plaintiff  Strong  objected,  as  against  the  terms  of  the  waiver. 
The  court  continued  the  objection  under  advisement  to  a  subse- 
quent day  of  the  term,  and  thereafter  on  the  seventh  day  of  the 


168  REPORTS. 

term,  the  court  decided  "  that  said  plaintiff  had  a  right  to  insist 
on  (he  terms  of  his  waiver,"  whereupon,  on  leave,  said  plaintiff 
withdrew  his  joinder  in  demurrer,  and  the  said  defendants  Jones 
and  Irwin  pleaded  the  general  issue,  the  plaintiff  joined,  and  the 
trial  progressed. 

We  arc  of  opinion  that  tho  terms  of  waiver  are  such  as  the 
plaintiff  mijihl  properly  have  imposed;  lint  the  demurrer  was  not 
a  plea  (o  the  mulls,  therefore  not  a  compliance  with  the  terms y 
that  tho  plaintiff  interposed  hid  objection  timely,  and  tint  the 
court  decided  correctly  in  enforcing  the  terms.  The  joinder  in 
demurrer  after  the  objection  raised,  without  drawing  it,  does  not 
vary  the  case,  or  imply  a  consent  of  the  pl.iintiff  to  join  in  demur- 
rer and  waive  his  terms,  because  his  objection  was  pending  for  the 
opinion  of  the  court,  which,  if  sustaining  it,  dispensed  at  once 
with  the  demurrer,  and  the  joinder  was  only  contingent,  to  be  en- 
tertained if  the  objection  were  overruled. 

The  leave  to  withdraw  the  joinder  was  not  necessary,  as  by  the 
decision  of  the  court  the  demurrer  was  rejected  as  against  the  terms 
of  the  waiver. 

In  addition  to  to  the  supposed  error  disposed  of,  the  following 
are  assigned: 

1.  The  court  erred  in  admitting  (he  newspaper  containing  the 
advertisement   of  the  Fox  River  Navigation   Company,  and  also 
the  file  of  newspapers  from  July  to   October,  1638,  in  evidence. 

2.  The  court  ened  in  admitting  in  evidence,  the  contracts  en~ 
tered  into  between  M.  M.  Strong,  plaintiff,  and  Calvin  Frink. 

3.  The  court  erred  in  admitting  in   evidence,  the   contract  en- 
tered ialo  between  M.  M.  Strong  plaintiff  and  William  Lrmgdo. 

4.  The  court  erred  in  admitting  in  evidence   the  deposition  of 
Thomas  J.  Ormabec. 

5.  The  court  erred  in  refusing  to  instruct  on  the  first  point  sub- 
mitted by  defendants. 

6.  The  court  erred  in  refusing  to  instruct  on  the  second  point 
submitted  by  defendants. 

7.  The  court  erred  in  refusing  to  instruct  on  the  third  point 
submitted  by  defendants. 

8.  The  court  erred  in  refusing  to  instruct  on  the  fourth   point 
submitted  by  defendants. 

9.  The  court  erred  in  refusing  to  instruct  on  the  fifth  pointsub- 
milled  by  defendants. 


REPORTS.  169 

10.  The  court  erred  in  refusing  to  instruct  on  the  sixth  point 
submitted  by  defendants. 

11.  The  court  erred  in  refusing  to  instruct  on  the  seventh  point 
submitted  by  defendants. 

12.  The  court  erred  in  refusing  to  instruct  on  the  eighth  point 
submitted  by  defendants. 

13.  The  court  erred  in  refusing  to  instruct  on  the   ninth  point 
submitted  by  defendants. 

The  defendants  below  were  sued  as  common  carriers;  "  per- 
sons who  undertake  for  hire  or  reward  to  transport  the  goods  of 
such  as  choose  to  employ  them  from  place  to  place."  To  make 
them  liable  as  such,  it  is  certainly  incumbent  on  the  plaintiff  be- 
low, to  prove,  that  they  svere,  at  the  time  of  the  act  complained 
of,  common  carriers,  within  the  definition  laid  down,  by  such  acts 
on  their  part,  as  indisputably  fixed  that  vocation  upon  them.  An 
advertisement  in  the  public  newspapers,  notifying  the  public  that 
they  had  undertaken  the  business  of  common  carriers,  is  legal  and 
proper  evidence.  It  is  necessary  that  the  plaintiff  should,  by  evi- 
dence, have  identified  the  defendants  with  the  public  notice. — 
The  introduction  of  such  evidence,  unsupported  at  the  time  by 
proofs  showing  that  the  advertisement  was  the  act  of  the  defend- 
ants, might  appear  to  be  ercncous,  but  if,  in  the  progress  of  the 
trial,  proofs  are  adduced  supplying  this  deficiency,  then  the  decis- 
ion of  the  court,  in  permitting  the  advertisement  to  be  read  in  ev- 
idence, is  relieved  from  every  appearance  of  objection.  The  de- 
position of  Orrnsbee,  made  a  part  of  tho  record  in  this  case  by 
the  exception  to  the  opinion  of  the  court,  permitting  it  to  be  read 
as  evidence  on  the  trial,  (which  exception  was  not  well  taken,  as 
we  shall  show,)  proves  conclusively  that  the  advertisement  was 
the  act  of  the  defendants.  The  first  error  assigned  is  not  well  taken. 

The  second  and  third  errors  are  similar,  and  may  be  disposed  of 
together.  The  plaintiff  ia  error  assume,  that  the  District  Court 
erred,  in  permitting  two  contracts,  one  between  Strong,  pi  .intiff 
below,  and  Calvin  Frink,  and  the  other  between  the  said  Strong 
and  William  Longdo,  to  be  read  as  evidence  on  the  trial.  It  is 
sufficient  for  the  court  to  say,  that  the  contracts  referred  to  are 
not  mnde  a  part  of  the  record  in  this  case  by  the  bill  of  excep- 
tions, and  that  the  record  presents  nothing  that  will  enable  us  to 
decide  the  points  raised.  Therefore,  they  are  dismissed  without 
further  comment. 


170  REPORTS. 

The  fourth  error  assigned  against  the  admission  of  the  deposi- 
tion of  Thomas  J.  Ormsbee,  is  not  apparent  to  tlio  coun.  The 
rules  interrogatories  and  cross  interrogatories,  choice  of  commis- 
sioners by  the  parties,  commission,  taking  of  the  deposition,  cer- 
tifying, sealing  tip,  and  directing  the  same,  nre  all  unexceptiona- 
ble. There  were  two  points  raised  in  the  arguments  of  the  error 
assigned:  1.  The  deposition  wus  returned  some  two  months  af- 
ter it  was  taken.  2.  It  was  delivered  by  the  plaintiff'  in  the  ac- 
tion into  the  District  Court,  on  the  second  day  of  the  term  at 
which  the  cause  was  tried,  only  four  days  before  the  trial.  There 
is  no  rule  of  court  orof  law,  which  limits  the  time  of  returning  a 
deposition  into  court,  or  directs  by  whom  or  how  it  shall  be  con- 
veyed. If  a  deposition  is  properly  taken,  certified,  sealed  up,  di- 
rected, and  the  matter  thereof  is  legal  and  proper  evidence  in  the 
case,  and  it  is  ready  in  court  before  the  trial,  there  certainly  can 
exist  no  reason  in  law  why  it  should  not  be  read  as  evidence.  Wo 
consider  these  to  be  the  requisites  of  a  legal  and  admissab'.e  de- 
position of  a  witness  residing  out  of  the  Territory,  under  the  law 
and  rules  of  court.  1.  The  entry  of  a  proper  rule  fora  commis- 
sion. 2.  Due  notice  thereof  to  ihe  opposite  parly,  his  agent  or 
attorney.  3.  The  issuing  of  a  commission  under  ihe  rule  in  due 
form  by  the  clerk,  under  seal, directed  to  the  commissioners  named, 
accompanied  by  a  certified  copy  of  all  the  interrogatories  on  file 
with  the  names  of  the  witnesses  to  be  examined,  and  n  copy  of 
the  first,  fifth,  and  sixth  rules  on  the  subject  of  depositions.  4. 
A  compliance  of  the  commissioners  w'nh  the  said  fifth  and  sixth 
rules  in  taking  the  deposition  and  certifying  the  same.  5.  A  com- 
pliance with  the  said  1st  rule  in  sealing  up  and  directing  the  same; 
And  Gih.  That  the  matter  thereof  be  legal  and  pertinent  evidence 
on  the  issue  in  the  case.  Oimsbee1^  deposition,  by  applying  this 
test,  is  free  from  exception,  and  the  Disirict  Court  did  not  err  in 
permitting  it  to  be  read  as  evidence  on  the  trial. 

The  fifth  error  assigned:  "That  the  court  erred  in  refusing 
to  instruct  the  jury  on  the  first  point  submitted  by  defendants." 
The  first  instruction  asked  is:  "  If  the  jury  believe  that  there  is 
not  proof  of  a  contract  between  the  plaintiff  and  defendants  to 
carry  the  goods  in  question,  other  than  the  general  advertisement 
to  the  public,  then  the  plaintiff  cannot  recover/'  In  deciding 
this  question,  we  must  consider  the  nature  and  extent  of  the  un- 
dertaking of  the  defendants  as  applicable  to  the  instruction  asked. 


REPORTS.  171 

The  definition  of  "common  carriers"  given,  affords  an  easy  solu- 
tion of  the  question.  "A  common  carrier  is  one  who  undertakes 
for  hire  or  rewaid,  to  transport  the  goods  of  such  as  choose  to  em- 
ploy him,  from  place  to  place."  This  is  a  general  undertaking 
and  embraces  every  one  in  the  community,  and  to  make  it  partic- 
ular as  an  undertaking  with  a  single  individual,  it  is  only  neces- 
sary that  he  should  apply  with  such  goods  as  the  common  carrier 
has  undertaken  to  transport,  in  condition  to  be  transported,  at  the 
place  designated,  to  have  the  good?  carried  on  the  terms  proposed 
in  the  undcitaking;  then  the  contract  becomes  identical  with  the 
person  then  applying,  and  it  requires  no  other  special  contract  be- 
tween the  parties,  to  subject  the  common  carrier  to  all  legal  lia- 
bilities as  such  to  tho  person  applying;  Allen  vs.  Sewcll,  1  Wen- 
dell, 237;  Bank  of  Orange  vs.  Brown,  3  Wendell,  15S.  The 
District  Court  decided  correclly  in  refusing  the  inslruction. 

Sixth  error  assigned:  "  The  court  erred  in  refusing  to  instruct 
on  the  second  point  submitted  by  defendants.'1  The  second  in- 
struction asked  is:  "If  the  jury  believe  that  there  is  not  proof  of 
any  delivery  of  the  goods  in  question, by  the  plaintiff  or  his  agent  to 
the  deferidenls, and  an  acceptance  by  the  defendants  of  said  goods, 
then  the  plaintiff  cannot  recover." 

This  instruction  seems  to  have  contemplated  a  different  cause 
of  action  than  that  set  up  in  the  plaintiff's  declaration.  This 
would  have  been  a  proper  instruction  in  substance,  if  the  plaintiff 
had  sought  to  recover,  for  negligence  in  carrying,  or  a  failure  to 
complete  the  carrying  and  delivery.  This  action  is  brought  to 
recover  damages  for  an  absolute  refusal  to  receive  and  carry; 
for  a  violation  in  Icinine  of  the  undertaking  of  the  defendants. — 
It  cannot  be  questioned  that  common  carriers  are  liable  for  refusing 
to  carry,  when  properly  requested,  as  well  as  for  negligent  carry- 
ing, or  failure  to  carry,  after  the  freights  hive  been  delivered  to 
them;  2  Show.  328,  Jackson  vs.  hodgcrs.  Chief  Justice  Jef- 
fries held,  "  that  the  action  is  maintainable  as  well  as  it  is  against 
an  inn-keeper  for  refusing  a  guesl,  or  a  smith  on  the  road  who  re- 
fuses to  shoe  a  horse,  being  tendered  satisfaction.  The  same 
opinion  is  held  by  Chief  Justice  Halt  in  Boson  vs.  Sandford  and 
others,  1  Show.  104.  These  opinions  are  sustained  by  various 
decisions  referred  to  in  the  cases  cited.  To  insist  that  there 
should  be  proof,  delivery  and  acceptance,  when  the  gist  of  the  ac- 
tion is  an  absolute  refusal  to  receive  and  carry,  appears  to  the 


172  REPORTS. 

court  to  be  entirely  agamst  the  law  and  reason.  The  District 
Court  was  correct  in  refusing  the  instruction. 

Seventh  error  assigned:  "  The  court  erred  in  refusing  to  in- 
struct on  the  third  point  submitted  by  defendants."  The  third 
instruction  asked  is:  "  If  the  jury  believe  from  the  evidence, 
the  goods  in  question  remained  in  possession  of  the  agent  of  the 
plaintiff,  and  never  were  in  the  possession  of  the  defendants  as 
carriers,  then  the  plaintiff  cannot  recover."  It  is  so  apparent  that 
it  seems  scarcely  necessary  ."or  the  court  to  remark,  that  the  rea- 
soning and  authority  which  disposes  of  the  second  instruction,  ap- 
ply equally  to  this.  If  our  opinion  is  sound  on  that,  we  must 
concur  with  the  District  Court  in  the  propriety  of  refusing  this 
also. 

Eighth  error  assigned:  "  The  court  erred  in  refusing  to  in- 
struct on  the  fourth  point  submitted  by  defendants."  The  fourth 
instruction  asked  is:  "If  the  jury  believed  from  the  evidence, 
the  goods  in  question  were  deposited  by  the  plaintiff  or  his  agent 
in  the  ware  house  of  Bruce,  a  third  person,  and  that  Bruce  had  a 
lien  of  charges  on  said  goods,  the  defendants  were  not  bound  to 
carry  them  in  the  absence  of  a  special  contract,  unless  the  plain- 
tiff show,  that  said  lien  for  charges  was  previously  discharged,  and 
cannot  recover."  This  instruction  also  grows  out  of  a  misappre- 
hension of  the  plaintiff's  true  cause  of  action.  Under  a  different 
state  of  case  averred  by  the  plaintiff  and  raised  in  the  testimony, 
this  instruction  might  have  been  proper.  Considering  the  true 
cause  of  action  and  the  facts  presented  on  the  record,  it  would 
not  have  been  a  proper  instruction.  If  no  other  reason  existed, 
the  one  assigned  by  the  court  was  sufficient:  "Because  the  sup- 
position of  charges  is  against  the  evidence  in  the  case."  The 
rule  is,  that  a  refusal  to  instruct  on  abstract  principles  of  law,  not 
presented  by  the  record,  nor  by  the  facts  in  the  case,  is  not  error, 
however  correct  the  principle,  applied  to  a  proper  case  Without 
claiming  that  the  court  should  respond  to  the  facts  in  a  case,  it 
must  necessarily,  respond  so  far  as  to  decide,  whether  a  principle 
of  law  is  raised  by  the  facts,  that  the  case  may  not  be  embarrassed 
by  matters  entirely  foreign.  If  the  charge  had  been  given,  would 
the  result  have  been  different,  presuming  that  no  other  than  legal 
evidence  was  produced  at  the  trial?  Ormsbee's deposition  is  the 
only  evidence  presented  in  the  record  for  the  inspection  of  this 
court;  from  this  evidence,  with  the  instruction,  no  other  finding 


REPORTS.  173 

of  the  jury  could  have  resulted.  The  District  Court  properly  re- 
fused the  instruction. 

The  ninth  error  assigned:  "  The  court  refused  to  instruct  on 
the  fifth  point  submitted  by  defendants."  The  fifth  instruction 
asked  is:  "  If  the  jury  believe,  from  the  evidence,  the  defend- 
ants assumed  to  carry  the  goods  in  question  fora  certain  price, 
and  the  plaintiff  has  not  shown  a  compliance  with  the  terms  of 
such  assumed  contract,  by  tendering  or  paying  said  price,  then 
the  plaintiff  cannot  rccovei."  The  court  refused  to  give  the  in- 
struction, and  referred  to  the  evidence  in  the  deposition.  Tin's 
instruction  is  like  the  one  just  disposed  of,  upon  which  we  have 
expressed  an  opinion. 

The  tenth  error  assigned:  "  The  court  erred  in  refusing  to 
instruct  on  the  sixth  point  submitted  by  the  defendants."  The 
sixth  instruction  asked  for  is:  "If  the  jury  believe  from  the  ev- 
idence, that  the  defendants  did  not  assume  to  carry  the  goods  in 
question,  but  merely  neglected  and  refused  to  carry  the  said  goods, 
the  defendants  are  not  liable  under  a  general  advertisement  to 
carry  for  the  public,  and  the  plaintiff  cannot  recover."  We  con- 
sider this  ground  of  error  disposed  of,  by  our  opinion  on  the  first 
instruction  asked  for  by  the  defendants  below,  and  will  add  noth- 
ing further  to  what  is  there  laid  down. 

The  eleventh  error  assigned:  "  The  court  erred  in  refusing  (o 
instruct  on  the  seventh  point  submitted  by  the  defendants."  The 
sevenjh  instruction  asked  is:  "  If  the-  jury  believe  from  the  evi- 
dence that  no  freight  boats  passed  up  Fox  River  afier  the  plain- 
tiff's goods  were  deposited  in  Biuce's  warehouse  and  not  in  the 
possession  of  the  defendants,  then  the  plaintiff  cannot  recovei." 
Admit  that  the  facts  were  as  assumed  in  the  instruction, they  would 
not  amount  to  a  defence,  even  in  a  case  to  which  they  might  ap- 
ply. That  boats  could  not  possibly  pass  up  Fox  River  at  the 
time  of  the  request  made  by  the  plaintiff,  for  causes  entirely  out 
of  the  control  of  the  defendants,  would  excuse  them  for  refusing 
to  carry.  The  fact  that  they  did  not  pass  up,  is  a  very  different 
thing,  and  more  allied  to  the  plaintiff'?  cause  of  action,  than  to 
the  defence.  The  court  properly  refused  the  instruction. 

The  twelfth  error  assigned:  "  The  court  erred  in  refusing  to 
instruct  on  the  eighth  point  submitted  by  defendants."  The 
eighth  instruction  asked  is:  "  If  the  jury  believe  from  the  evi- 
dence, that  there  was  no  special  contract  to  carry  the  goods  in 


174  REPORTS. 

question,  and  no  delivery  oi  the  same  to  the  defendants  by  the 
plr.intiff,  and  that  there  was  only  a  qualified  promisa  to  carry  the 
same  if  (he  d  fendants  were  able  to  do  so,  thru  the  plaintiff  can- 
not recover  on  an  alledged  breach  of  contract  imde  to  (he  public." 
There  arc  three  distinct  matters  embraced  in  this  instruction: — 
No  special  contract-  nodclitery;  and  a  qualified  promise  to  car- 
ry. The  two  former  have  been  disposed  of  against  the  error  as- 
signed, and  the  latter  branch  of  the  instruction  was  given  as  asked, 
with  the  remark  by  the  court,  that  the  facts  show  a  different  state 
of  case.  The  language  of  the  court  in  (he  instruction,  ''if  there 
were  only  a  qualified  promise  to  convey  the  goods,  the  plaintiff 
cannot  recover  on  a  general  promise,''  fixes  the  character  of  the 
instruction,  and  show  conclusively,  that  the  court  intended,  the 
jury  should  respond  to  the  facts,  to  which  the  principle  of  law 
was  applicable :  And  the  intimation  in  this  instance,  does  not  in- 
fringe the  rule,  in  its  most  rigorous  sense,  that  the  court  should 
respond  to  the  law,  and  die  jury  to  the  facts. 

The  thirteenth  error  assigned:  ''The  court  erred  in  refusing 
to  instruct  on  the  ninth  point  submitted  by  defendants."  The 
ninth  instruction  asked  is:  "  The  court  is  requested  to  instruct 
the  jury,  to  throw  out  of  their  consideration,  all  evidence  proving 
a  special  contract  of  the  defendants  with  the  plaintiff,  in  relation 
to  the  carriage  of  the  goods  in  question,  as  the  plaintiff  has  not  al- 
ledged in  his  declaration,  any  such  contract  with  him."  The 
court  refused  so  to  instruct, rcmniking:  "as  the  law,on  the  uno^erta- 
king  of  the  defendants  as  set  forth  in  their  advertisement,  implies 
a  contract;  and  as  the  court  supposes,  from  remarks  made  on  the 
deposition  of  Oansbcc,  objecting  to  the  same,  for  the  reason  that 
it  was  evidence  of  a  special  contract,  that  the  instruction  asked 
for  is  to  rebut  or  reject  that  evidence."  The  rule  is,  that  a  depo- 
sition or  witness  should  be  objected  to  at  the  time  of  offering  to 
read  the  deposition  or  swear  the  witness.  If  once  admitted,  the 
court  cannot  take  citinrfrorn  the  jury  by  instruction.  The  court 
niay  instruct  the  jury  to  disregard  evidence  or  testimony,  on  the 
ground  of  interest  developed  on  the  trial.  The  court  properly  re- 
fused the  instruction. 

It  is  the  rpmion  of  this  court,  that  the  judgment  of  the  Dis- 
trict Court  of  Dane  county  be  affirmed  with  costs. 

JACKSON  and  COLLINS,  for  plf'is  in  error. 

DUNN  and  WHITON  for  deft  in  error. 


REPORTS.  175 


BEN J  A MIN  FO W LER,  p!J  in  f rror,  ] 

rs.  >  Error  to  Racine  county. 

JULIUS  COLTON,  dcpi  in  error, 


1- 


A  NOTICE  of  special  mnttcr  tn  be  given  in  evidence,  filed  with  the  plea  of 
general  is.sstie,  must  contain  all  the  substantial  matter  of  a  special  plea.  In 
actions  upon  contracts,  il  is  sufficient  if  it  contains  such  a  statement  of 
special  matter  as  will  prevent  the  plaintiff  from  being  taken  by  surprise  at 
the  trial. 

In  actions  of  slander,  the  notice  of  special  matter  in  justification,  must 
be  as  precise  and  certain  as  a  special  plea  of  justification. 

As  (here  is  no  form  prescribed  for  a  notice,  its  sufficiency  must  depend, 
in  some  degree,  upon  the  peculiar  circumstances  of  each  case. 

Asa  notice  is  not  technically  a  part  of  the  record,  it  is  not  proper  to  dis- 
pose of  it  by  demurrer;  it  should  contain  all  the  facts  necessary  to  sustain 
it,  if  in  a  plea,  against  a  general  demurrer;  the  correct  practice  is  to  ex- 
clude the  evidence  offered,  if  the  notice  is  insufficient. 

The  refusal  of  the  court  to  allow  a  notice  to  be  amended  on  the  trial,  is 
not  error;  the  statute  of  amendments  is  not  obligatory  on  the  courts,  but 
only  gives  ihcm  the  discretion  to  allow  or  disallow  amendments  to  be  made, 
and  the  allowance  or  disallowance;  of  amendments,  resiing  in  the  discre- 
tion of  the  court,  is  not  the  subject  ol  error. 

An  opinion  of  the  court  of  a  fact  in  ;he  case,  of  the  weight  of  tesiimony, 
or  the  character  of  a  witness,  is  not  binding  upon  the  jury,  arid  is  not  error. 

Where  each  of  the  jurors  sets  down  the  amount  of  damages  which  he  is 
willing  to  allow  the  plaintiff,  ami  the  jury  divide  the  aggregate  ot  the  sums 
by  1:2,  and  agree  upon  the  quotient  as  the  amount  of  their  verdict,  it  is  not 
such  misconduct  ?is  wotdd  cntiilo  the  defendant  to  a  new  trial,  unless  it  is 
shown  that  the  jury  acted  corruptly,  or  that  :hey  previously  bound  them- 
selves to  adhere  to  the  result. 

Questions  of  law,  arising  upon  motions  for  new  trials,  are  legitimate  sub- 
jects of  inquiry  in  the  Supreme  Court. 

Where  the  rules  of  the  District  Court  require  all  depositions  intended  to 
bo  read  on  the  consideration  of  all  motions  to  be  taken  on  notice  to  the  ad- 
verse party,  the  court  may  reject  ex  pirte  affidavits  offered  in  support  of  a 
motion  for  a  new  trial,  and  the  court  is  not  bound  to  hear  witnesses  on  the 
stand  in  support  of  the  motion. 

This  was  an  action  of  slander  commenced  by  Colton  ngainst 
Fowler  in  ihe  Racine  District  Court.  The  declaration  coniained 
three  counts:  The  first  count  alledged  lhat  the  defendant  had 
charged  the  plaintiff  with  theft  in  stealing  a  bee  hive  and  honey 
belonging  to  one  Lucas,  and  a  bag  of  flour  belonging  to  the  de- 
fendant: The  second  count  was  for  charging  the  plaintiff  with 
theft  in  steuli-ng  a  hive  of  bees  and  honey  of  one  D.micl  Lucas: 
And  the  third  count  was  for  words  charging  the  plaintiff  with  theft 
in  stealing  grain  and  flour  from  See's  mill,  and  stealing  Lucas1 
bee  hive.  The  slanderous  words  were  variously  laid  in  the  decla- 
ration, to  which  the  defendant  pleaded  the  general  issue,  and  gave 


176  REPORTS, 

notice  of  special  matter  in  justification.  The  notice  will  be  found 
in  the  opinion  of  the  court. 

Upon  the  trial,  one  Isaac  Goodpaslure  was  sworn  and  examined 
as  a  witness  fur  the  plaintiff  to  prove  the  speaking  of  the  slander- 
ous words;  he  was  afterwards  called  by  the  defendant,  and  testi- 
fied that  the  plaintiff's  character  was  bad. 

After  the  plaintiff  had  closed  his  testimony,  the  defendant  of- 
fered to  justify  by  proving  the  truth  of  the  words  spoken,  which 
was  objected  to  by  the  plaintiff  on  the  ground  of  the  insufficiency 
of  the  notice.  The  court  sustained  the  objection,  and  decided 
that  the  notice  was  not  sufficient.  The  defendant  then  asked 
leave  to  amend  the  notice,  which  was  refused  by  the  courtj  to 
both  of  which  decisions  the  defendant  excepled, 

Among  the  instructions  given  by  the  court  to  jury,  was  the  fol- 
lowing: "In  considering  character,  you  will  also  consider  the 
character  of  the  witnesses,  for  and  against,  and  give  tlieir  testi- 
mony such  weight  as  they  may  deserve.  Such  a  man  as  Good- 
pasture,  when  called  upon  this  subject,  will  not  be  entitled  to 
much  weight."  To  which  instruction  the  defendant  excepted. 

The  jury  returned  a  verdict  in  favor  of  the  plaintiff  for  $375  in 
damages;  upon  which  the  defendant  moved  for  a  new  trial,  on  the 
grounds,  among  other  things:  that  the  court  erred  in  instructing 
the  jury  that  the  evidence  of  Goodpasture  was  not  entitled  to  much 
weight;  that  the  court  erred  in  rejecting  the  evidence  offered  by 
the  defendant  in  justification;  and  that  the  court  erred  in  refusing 
to  allow  the  defendant  to  amend  his  notice  of  special  mutter:  and 
also, "  that  the  jury  erred  in  first  marking  damages  for  the  plain- 
tiff at  surns  varying  from  one  dollar  to  one  thousand  dollars,  and 
then  split  the  difference,  and  returned  a  verdict  from  computation, 
rather  than  from  law,  evidence,  or  their  own  judgments." 

To  sustain  the  last  ground,  the  defendant  offered  to  prove  by  the 
affidavit  of  H.  N,  Wells,  that  the  jury,  in  ascertaining  the  amount 
of  damages  in  the  case,  marked  the  sums  which  they  would  al- 
low, and  then  added  these  sums  together,  and  divided  the  whole 
by  twelve,  and  took  the  quotient  as  their  verdict,  and  that  these 
sums,  so  marked,  varied  from  fifty  dollars  to  one  thousand  dollars; 
and  if  the  affidavit  should  not  be  admissable,  the  defendant  offered 
to  prove  the  facts  by  a  witness  on  the  stand.  The  Court  refused 
to  receive  the  affidavit  because  it  had  been  taken  without  notice 
to  the  adverse  party,  and  also  refused  to  hear  witnesses  on  the 
stand  in  support  of  ihe  motion. 


REPORTS.  177 

On  argument,  the  Court  overruled  the  motion  for  a  new  trialj 
and  rendered  judgment  on  the  verdict.  To  reverse  this  judgment, 
Fmvler  sued  out  a  writ  of  error,  and  has  brought  the  cause  into 
this  court. 

WELLS,  for  pl'ffin  error,  declined  opening  the  argument. 

MAIISHALL  M.  STRONG,  for  deft  in  error: 

The  first  question  in  order  arises  upon  the  decision  of  ihe  court 
as  to  the  insufficiency  of  the  nolice.  A  notice  generally,  should 
contain  all  the  matter  necessary  to  be  stated  in  a  plea,  and  set  it 
out  with  the  same  certainty.  There  are  two  leading  cases  in  New 
York  upon  this  point.  The  first  is  in  13  John.  Rep.  475;  the  se- 
cond in  21)  John.  Rep.  740.  In  the  first  case  it  is  laid  down  as> 
the  rule  to  lest  the  sufficiency  of  a  notice,  to  consider,  whether  if 
it  were  embodied  in  tho  form  of  a  special  pica,  it  would  be  good 
on  general  demurrer;  in  the  second  case,  the  rule  is  staled  to  be, 
that  if  the  nolice  is  so  certain  that  the  plaintiff  is  not  taken  by 
surprise,  it  is  sufficient.  Chancellor  Kent,  in  the  latter  case,  re- 
fers to  8  John.  Rep.  457;  but  on  examination  of  the  case  referred 
to,  it  will  be  seen  lhat  it  does  sustain  ihe  latlcr  rule  laid  down  by 
the  court.  The  rule  established  in  the  case  in  13  John,  is  affirm- 
ed in  8  Wendell,  572;  and  again  in  24  Wendell,  357.  But  ap- 
ply the  test  of  either  of  the  cases  lo  this  notice,  and  it  cannot  be 
sustained. 

The  first  objection  to  the  notice  is,  that  it  does  not  confess  the 
facts  alledgcd  in  the  declaration.  It  is  a  rule  in  pleading,  that 
whenever  matter  in  justification  or  avoidance  is  pleaded,  the  facts 
to  be  justified  or  avoided  must  be  confessed.  3  Cowen,  370. 
Root  vs.  Kinz,  7  Cowen,  033.  This  notice  docs  not  confess  the 
speaking  of  the  slanderous  words. 

The  second  objection  is,  lhat  it  professes  to  answer  the  whole 
declaration,  and  answers  only  a  part  of  it.  Divers  thefts  are  al- 
ledged  in  thu  declaration  to  have  been  charged  by  the  defendant 
against  the  plaintiff,  and  the  notice  only  goes  to  justify  a  part  of 
them.  The  justification  is  therefore  insufficient.  3  Chitty,  1003. 
2  Wendell,  541.  Arehbol.l,  39.  2  Hawk.  324. 

The  third  objection  is,  that  the  notice  does  not  state  the  price  or 
vajue  of  tha  property  stolen.  This  ought  to  be  stated  to  each  ar- 
ticle. Archbold,  43. 

The  fourth  objection  is,  that  the  notice  does  not  answer  the  whole 
declaration.  The  rule  is,  that  the  justification  in  an  action  of 

23 


178  REPORTS. 

slander,  must  be  as  broad  as  the  charges  in  the  declaration;  Star1 
kie  on  Slander,  339,  342.  The  objections  to  the  notice  are  so  ob- 
vious, and  so  fully  sustained  by  authority,  that  it  would  seem  that 
the  correctness  of  the  decision  of  ihe  District  Court  cannot  be 
questioned. 

The  application  for  leave  to  amend  the  notice,  was  addressed-to 
the  discretion  of  the  court.  It  was  made  pending  the  trial,  and 
after  the  plaintiff  had  closed  his  testimony.  Sound  discretion 
could  not  allow  the  amendment  to  be  made  at  that  time.  It  would 
have  been  the  same  thing  as  to  allow  a  plea  of  justification  to  be 
filed  at  that  stage  of  the  trial,  and  so  fur  as  the  plaintiff  is  concern- 
ed, the  court  might  as  well  allow  the  defendant  to  justify  without 
plea  or  notice.  Besides,  a  refusal  to  allow  an  amendment  is  not 
error.  The  statute  of  amendments  leaves  the  whole  matter  to  the 
discretion  of  the  court,  and  a  case  cannot  be  found  where  a  refusal 
was  decided  to  be  error. 

The  exception  1o  the  charge  of  the  court  is  not  well  taken. 
Whatever  the  judge  may  state  as  his  opinion  of  facts,  it  is  not  error, 
if  he  leaves  the  facts  to  the  jury  to  determine.  Graham  on  New 
Trials,  311,312,317,319. 

The  rules  of  the  District  Court  require  all  affidavits  or  deposi- 
tions in  support  of  a  motion  to  be  taken  on  notice  to  the  adverse 
party.  The  affidavit  for  a  new  trial  was  therefore  properly  reject- 
ed. The  practice  of  hearing  witnesses  on  the  stand  in  such  a 
case  would  be  without  precedent  or  authority.  But  if  the  de- 
fendant had  proven  all  that  he  offered  to  prove,  it  would  not  have 
established  any  legal  ground  for  a  new  trial.  It  is  not  improper 
for  the  jury  to  figure,  cast  up  and  divide  as  much  as  they  choose  to 
do.  To  make  it  improper,  they  must  have  agreed  beforehand  to 
be  bound  by  the  result  of  the  calculation.  Graham  on  New  Trials, 
106,  107,  108,  109. 

There  was  no  legal  ground  for  granting  a  new  trial,  but  if  this 
court  should  think  that  if  the  application  were  here  made,  the  new 
trial  would  be  granted,  still  the  refusal  of  the  District  Court  to 
grant  it,  is  not  error.  5  Wendell,  277.  5  Cranch,  11,4  Wheat- 
on,  220. 

WELLS,  in  reply: 

The  notice  in  this  case  is  as  full  and  perfect  as  any  form  that  can 
be  found  in  the  books.  The  authorities  that  have  been  read, 
showing  the  certainty  required  in  special  pleas  and  indictments  is 


REPORTS.  179 

not  applicable  here.  The  object  of  the  legislature  in  allowing  a 
notice  of  special  matter  to  be  filed  with  the  plea  of  general  issue, 
was  to  simplify  pleading  and  defence.  If  it  must  be  as  full  and 
certain  as  a  special  plea,  the  law  is  of  no  utility.  It  is  not  neces- 
sary that  it  should  admit  the  speaking  of  the  words,  and  none  of 
the  authorities  that  have  been  cited  require  that  it  should.  This 
notice  states  that  the  defendant  will  prove  that  the  words  charged 
in  the  declaration  are  true.  This  is  sufficient;  it  fully  apprizes 
the  plaintiff  of  the  defence  intended  to  be  set  up  on  the  trial.  It 
is  as  good  as  a  notice  of  payment  in  a  suit  on  a  promissory  note. 
The  decision  in  8  Wendell  does  not  support  the  position  assumed ; 
it  only  requires  that  the  notice  should  contain  the  matter  that 
would  be  necessary  in  a  pica,  but  does  not  require  the  form.  The 
true  rule,  and  one  sustained  by  authority  is,  that  where  the  notice 
sufficiently  apprizes  the  plaintiff  of  the  defence  intended  to  be 
relied  on,  it  is  all  that  is  necessary.  In  8  John.  Rep.  475,  is  the 
form  of  a  notice  which  was  sustained  by  the  court,  which  is  not  so 
full  and  perfect  as  the  one  in  this  case,  and  the  decision  there 
shows  that  the  certainty  that  is  necessary  in  an  indictment  or  a 
special  plea  is  not  required.  See  also,  11  John.  Rep.  38.  20 
John.  Rep.  775. 

If  the  rule  be,  that  the  notice  must  be  as  full  and  certain  as  a 
special  plea,  and  its  sufficiency  is  to  be  tested  by  comparing  it  with 
a  special  plea,  then  the  plaintiff  ought  to  have  demurred  to  it. 
This  would  have  brought  the  question  before  the  court  in  time, 
and  if  it  was  found  to  be  defective,  it  might  have  been  amended 
and  the  party  would  not  have  been  shut  out  from  his  defence. 

After  the  decision  against  the  notice,  the  court  ought  to  have 
allowed  it  to  be  amended.  The  statute  of  amendments  is  per- 
emptory, and  not  discretionary.  The  word  may  means  shall,  and 
the  only  discretion  that  the  court  has  in  the  matter  is,  to  determine 
whether  the  amendment  proposed  is  for  the  furtherance  of  justice. 
If  the  refusal  of  the  court  below  was  an  abuse  of  sound  discretion- 
ary power,  then  the  judgment  ought  to  be  reversed. 

We  contend,  that  the  District  Court  erred  in  instructing  the 
jury  that  the  testimony  of  Goodpasture  was  entitled  to  very  little 
weight.  Goodpasture  was  the  plaintiff's  witness,  and  by  intro- 
ducing him  he  said  to  the  jury  that  he  was  a  man  of  character  and 
entitled  to  belief.  He  had  no  right  to  impeach  him,  and  no  at- 
tempt was  made  to  do  it,  except  by  the  court.  This  witness 


180  REPORTS. 

proved  for  the  plaintiff  what  was  expected  of  him;  he  afterward*, 
•when  again  called,  proved  the  plaintiff's  character  to  be  bad. 
Again:  the  court  had  no  right  to  charge  the  jury  to  judge  of  the 
testimony  by  the  character  of  tho  witnesses,  when  none  of  them 
had  been  impeached.  Chancier  is  always  held  to  be  good  until  it 
is  proven  to  bo  bad.  5  Wendell,  195.  This  is  a  presumption  of 
law  that  is  binding  on  both  courts  ;md  juries. 

The  court  below  rejected  the  affidavit  in  support  of  the  motion 
fora  new  trial  because  it  had  been  taken  without  notice.  There 
is  no  authority  lhat  can  be  found,  that  requires  notice  in  such  case. 
The  rules  of  practice  do  not  require  it,  and  it  is  error  in  the  court 
to  require  it.  Graham  on  New  Trials,  5, 6, 7;  id,  104,  105,  10G. 

Opinion  of  the  Court,  by  Judge  MILLER: 

This  was  an  action  of  slander  in  the  Disirict  Court  of  Racine 
county,  in  which  Colton  was  plaintiff  and  Fowler  defendant.  The 
defendant  pleaded  the  general  issue,  and  filed  notice  of  special 
matter  to  be  given  in  evidence  on  the  trial  in  justification,  as  fol- 
lows: "The  defendant  will  give  in  evidence,  under  the  general 
issue,  on  the  trial  of  this  cause,  that  the  plaintiff,  before  the  speak- 
ing and  publishing  of  the  said  several  words  by  the  said  defendant, 
of  and  concerning  the  snid  plaintiff,  as  in  the  said  several  counts 
in  the  said  declaration  mentioned,  to  wit:  on  or  before  the  twen- 
ty-fifth day  of  November,  eighteen  hundred  and  forty,  to  wit:  at 
Racine  county  aforesaid,  did  feloniously  steal,  take,  and  carry 
away,  certain  goods  and  chattels,  to  wit:  one  hive  of  bees  and  the 
honey,  of  one  Daniel  Lucas,  and  also  one  bug  of  flour,  of  him,  the 
said  defendant,  as  spoken  by  ihe  said  defendant,  and  charged  by 
the  said  pliinliff  in  his  said  declaration,  to  wit:  of  the  value  of  fifty 
dollars,  all  of  which  was  conlrary  to  the  form  of  the  statute  in 
such  case  made  anc  provided;  wherefore  the  said  defendant,  if  he 
spoke  the  said  slanderous  words,  in  the  said  declaration  mentioned, 
was  jusiified  and  had  a  right,  afterwards,  to  wit:  on  the  25th  day  of 
November,  1840,to  wit:  at  Racine  county,  aforesaid,  to  speak  and 
publish  the  snid  words  of  and  concerning  the  said  plaintiff,  for  the 
cause  aforesaid.'1 

After  ihe  plaintiff  had  closed  his  evidence  on  the  trial,  the  de- 
fendant offered  evidence  in  justification,  which  was  objected  to,  on 
the  ground  of  the  insufficiency  and  immateriality  of  the  notice, 
which  objection  was  sustained  by  the  court,  and  the  testimony  re- 
jected. This  is  the  first  error  assigned. 


REPORTS.  181 

The  notice  is  allowed  to  be  filed  with  the  general  issue  in  case 
of  the  defendant.     He  may  or  he  may  not  rely  upon  it,  and  the 
plaintiff  is  bound,  notwithstanding  the  notice,  to  prove  the  facts  sot 
forth  in  the  declaration;  Vavghan  rs.  Hatens,  8  John,  109.    Gen- 
erally, a  notice  must  contain,  in  substance,  all  the  substantial  mat- 
ter of  a  special  pica,  but  is  not  required  to  be  in  the  form.     In  ac- 
tions upon  contract,  a  notice  is  sufficient  if  it  contain  such  a  state- 
ment of  special  matter  to  be  given  in  evidence  at  th<;  trial  ns  miy 
prevent  the  plaintiff  from  being  taken  by  surprise.     The  statute 
lias  prescribed  no  form,  and  each  case  must,  in  some  degree,  de- 
pend upon  its  peculiar  circumstances,  and  upon  the  application  of 
sound  discretion  in  the  court  at  the  trial;  Chambc.rlin  rs.  Gorham, 
20  John.  749.     But  the  general  rule  undoubtedly  is,  that  she  no- 
tice should  contain  all  the  facts  necessary  to  sustain  a  plea  against 
a  general  demurrer,  oral  least  a  motion  for  a  judgment  nnn  ob- 
slante  vcredicto;  Bishop  and  Med bury  vs.  Earl,  17  Wendell,  310. 
Although  the  notice  is  not   required  to  be  in  the  strict  technical 
form  of  a  plea,  it  must  comain  all  the  facts  necessary  to  be  slated 
in  a  special  plea;  S/ieppard  vs.  Merrill,  14  John.  475.     And   it 
must  state  truly,  the  facts  intended  to  be  given  in  evidence ;  Kane 
vs.  Sawyer,  14  John.  89.     It  must  also  be  so  particular  as  to  ena- 
ble the  plaintiff  !o come  prepared  to  meet  the  facts  stated  therein; 
Chamberlin  vs.  Gorham,  20  John.  744.     In  slander,  a  notice  of 
justification  must  be  as  precise  and  certain  as  a  special  plea  of 
justification,  Mitchell  vs.  Borden,  8  Wendell,  570.     In  a  special 
plea,  the  felony  must  be  charged  with  certainty,  and  the  party  must 
aver  the  speaking  of  the  words,  and  expressly  and  distinctly  con- 
fess the  speaking.     The  plea  or  notice  of  the  truth  in  justification 
admits  the  malice,  and  puts  the  naked   truth  in   issue;  Root  vs. 
King,7Co\\en,  613;    Matson  vs.  Beech,  5  Cowen,  499.      And 
notice  of  special  matter  in  slander  should  be  drawn  and   proven 
with  great  particularity;  Woodbeck  vs.  Keller, 6  Cowen,  1 18.  For 
charging  the  plaintiff  with  having  sworn  false,  if  the  defendant  in- 
tends to  justify  under  a  notice  subjoined  to  his  plea,  he  must  give 
notice  that  he  will  prove,  not  only  that  the  plaintiff  swore  false,  but 
that  he  swore  wilfully  and  corruptly  false;  Mitchell  vs.  Bortlcn, 
8  Wendell,  570.     WKinlcy  vs.  Rob,2Q  John.  351.     From  this 
array  of  authority,  it  must  be  apparent  that  the  notice  filed  in  this 
case,  was  not  sufficient.     It  is  certain  that  it  could  not  be  sustain- 
ed against  a  general  demurrer,  which  is  made  the  test  by  the  Su- 


182  REPORTS. 

preme  Court  of  New  York.  It  is  confused,  uncertain,  and  argu- 
mentative. The  plaintiff  could  not  be  expected  to  be  prepared  to 
meet  evidence  in  justification  on  this  notice;  and  if  the  defend- 
ant's offer  had  not  been  overruled,  the  plaintiff  must  have  been 
taken  by  surprise. 

As  a  notice  of  special  matter  is  not,  technically,  a  part  of  the 
record,  it  is  not  proper  to  dispose  of  it  by  demurrer,  although  it 
should  contain  all  the  facts  necessary  to  sustain  it,  if  a  plea,  against 
a  general  demurrer.  It  is  the  practice  to  exclude  evidence  for 
insufficiency  of  the  notice.  It  is  the  business  of  counsel  to  draw 
it  correctly,  at  the  risk  of  a  rejection  of  the  evidence. 

After  the  testimony  offered  by  defendant  had  been  rejected, 
the  defendant  moved  for  leave  to  amend  his  notice,  which  was  not 
granted  by  the  court,  and  this  is  the  subject  of  the  second  error 
assigned.  The  notice  then  on  file  had  been  allowed  to  be  amend- 
ed, according  to  the  rules  of  the  court,  before  the  trial.  Even  if 
the  refusal  of  this  second  amendment  were  the  subject  of  error, 
we  could  not  say  that  the  court  committed  any  error  in  this  parti- 
cular, for  every  indulgence  was  extended  to  the  defendant  that 
should  reasonably  be  desired.  The  act  concerning  amendments 
provides,  that  "  the  court  in  which  any  action  shall  be  pending, 
shall  have  power  to  amend  any  process,  pleading,  or  proceeding." 
This  is  not  obligatory  upon  the  court,  but  merely  discretionary 
for  the  furtherance  of  justice.  Now  it  is  well  settled,  that  the  al- 
lowance or  disallowance  of  amendments,  when  it  is  a  matter  of 
discretion,  is  not  the  subject  of  error.  Mandeville  vs.  Wilson,  5 
Cranch,  15.  Marine  Ins.  Co.  vs.  Hodgson,  6  Cranch,  206. 
Chirac  vs.  Reinicker,  11  Wheaton,  280.  Sheclyvs.  Mandeville, 

6  Cranch.  253.     Walden  vs.  Craig,  9  Wheaton,  576.      Ordro- 
nealix  vs.  Prady,  6  Sergt.  &.  Rawle,  510.     Clymer  vs.  Thomas, 

7  Sergt.  &,  Rawle,  180. 

The  Court,  in  the  charge  to  the  jury,  remarked,  "  that  in  con- 
sidering the  character  of  the  plaintiff,  you  will  also  consider  the 
character  of  the  witnesses,  for  and  against,  and  give  their 
testimony  such  weight  as  it  may  deserve.  Such  a  witness  as 
Isanc  Goodpasture,  when  called  upon  this  subject,  will  not  be  en- 
titled to  much  weight."  In  this,  error  is  alledged,  but  there  is 
none  apparent.  This  was  an  opinion  of  the  court^  not  in  the  least 
binding  on  the  jury.  An  opinion  of  a  face,  not  given  as  binding 
on  the  jury,  is  not  error;  Porter  vs.  Wllroy,  4  Sergt.  &  Rawle, 


REPORTS.  183 

436.  A  nd  it  must  clearly  appear  that  the  jury  were  excluded  from 
finding  for  themselves;  Riddle  vs.  Murphy,  7  Sergt.  &,  Rawle, 
230.  A  court  may  give  an  opinion  to  a  jury  of  the  weight  of  evi- 
dence ;  Dunlap  vs.  Patterson,  5  Cowen,  243.  Ex  parte  Buily,  2 
Cowcn,  479.  And  an  opinion  of  the  judge  concerning  facts,  is 
not  the  subject  of  error;  Burdvs.  Donsdale,  2  Bmney.  80;  Long 
vs.  Ramsay,  1  S.  &..  R.  72,  The  court  has  a  right,  and  it  is  its 
duty,  to  explain  to  the  jury  th&t  they  are  the  judges  of  the  facts  in 
a  case,  and  it  is  their  province  to  give  to  the  testimony  of  the  wit- 
nesses its  proper  and  legitimate  weight  and  importance.  The 
court  in  this  case,  did  not  go  further  than  the  Supreme  Court  of 
Pennsylvania  in  the  case  of  Burr  vs.  Sim,  4  Wharton,  156,  where 
it  was  decided  that  it  was  not  error  in  a  judge  to  tell  a  jury  that  a 
witness  was  a  "  very  willing  witness,"  and  that  "  very  little  confi- 
dence was  to  be  placed  in  her  testimony;"  nor  to  remark  upon  the 
strength  or  absence  of  evidence,  or  to  suggest  presumptions 
arising  out  of  the  relationship  or  conduct  of  one  of  the  parties. 

The  defendant  moved  for  a  new  trial  on  the  alledged  ground  of 
misconduct  of  the  jury  in  agreeing  upon  their  verdict;  and,  at  the 
argument  of  this  motion,  he  offered  to  prove  "  that  the  jury,  in  as- 
certaining the  amount  of  damages,  marked  the  sums  which  they 
would  allow,  and  then  added  the  sums  so  marked  together,  and  di- 
vided the  whole  by  twelve  and  took  the  quotient  as  their  verdict, 
which  they  returned  into  court  as  their  verdict;  that  the  sums  so 
marked  varied  from  fifty  dollars  to  one  thousand  dollars;  and  the 
defendant  offers  the  affidavit  of  H.  N.  Wells  to  prove  the  faci,or 
if  the  affidavit  is  not  admissible,  a  witness  is  offered  to  prove  them 
on  the  stand."  It  appears  that  this  offer  was  presented  at  the  ar- 
gument of  the  motion  for  a  new  trial,  when  the  Court  made  this 
entry:  "  The  motion  for  a  new  trial  being  taken  up  for  considera- 
tion, this  offer  is  overruled."  The  affidavit  referred  to  did  not  ap- 
pear to  have  been  taken  on  notice.  It  is  the  practice  in  the  third 
district  to  adhere  to  the  rule  requiring  all  depositions  offered  to  be 
read  on  the  argument  and  consideration  of  all  motions,  to  be  taken 
on  notice  to  the  opposite  party;  and  such  being  the  role,  we  will 
not  say  it  was  wrong  to  reject  the  offer.  The  court  is  not  bound 
to  hear  a  witness  on  the  stand  at  the  argument  of  a  motion,  parti- 
cularly as  it  is  not  the  practice.  But  even  if  the  testimony  had 
been  perfect,  and  the  witness  competent  to  prove  the  facts  con- 
tained in  the  offer,  yet  the  court  would  have  been  right  in  over 


184  REPORTS. 

ruling  it.  If  the  jury  had  made  up  their  verdict  in  the  manner 
stated,  there  was  no  error.  There  is  no  allegation  of  corruption 
in  the  jury.  There  is  no  averment  that  the  jury  previously  bound 
themselves  to  adhere  to  the  resuli;  but  it  is  stuirrd,  merely,  that 
they  did  put  down  the  amount  each  would  allow,  and  did  ascer- 
tain the  quotient,  which  they  agreed  upon  as  their  verdict.  After 
the  members  of  the  jury  argue  the  question,  and  agree  to  find  for 
the  phinlilf,  in  torts  and  other  cases  where  there  is  no  ascertained 
demand,  it  can  seldom  happen  that  they  can  or  will  agree  at  once 
upon  a  precise  sum  to  be  given  in  damages.  There  will,  necessa- 
rily, arise  a  variety  of  opinions,  and  mutual  concessions  m7:st  be 
expected.  A  middle  sum  may  in  many  cases  be  a  £ood  rule;  and 
hough  it  is  possible  this  mode  may  be  sometimes  abused  by  a  de- 
signing juryman  fixing  upon  an  extravagantly  high  or  a  very  low 
sum,  yet,  unless  sucli  abuse  appears,  the  fraudulent  design  will 
not  be  presumed.  It  is  immaterial  whether  they  come  to  their  re- 
sult upon  paper,  or  in  the  course  of  conversation,  so  that  they 
agree,  after  the  result  is  ascertained,  to  make  that  result  their 
verdict;  Copper thicaite  rs.  Jones,  2  Dallas,  55.  S/iobe  vs.  Btll, 
1  Randolph,  30.  Grinncll  vs.  Phclps,  1  Mass.  Rep.  541.  Dana 
vs.  Tucker.  4  John.  437. 

The  Supreme  Court  of  the  United  States  will  not  take  cogni- 
zance of  questions  of  law  which  may  arise  in  the  circuit  or  dis- 
trict courts  upon  motions  fora  new  trial,  as  it  is  a  motion  addressed 
10  their  discretion;  Woods  vs.  Young,  4  Cranch,  237.  Hender- 
son vs.  Moore,  5  Cranch,  11.  Bcirr  rs.  Gratz,  4  Wheat.  213; 
but  under  our  statute  it  is  a  legitimate  subject  of  inquiry  in  this 
court.  It  will  appear  that  we  have  not  hesitated  to  express  an 
opinion  upon  the  reason  alledged  for  a  new  trial  in  this  case,  al- 
tho:»h  it  was  not  presented  to  the  District  Court  in  such  a  man- 
ner that  ii  might  have  been  considered  and  passed  upon  there  as 
rccuired  :>y  the  practice;  Iloughton  rs.  Stone,  4  Wendell,  175; 
yet  to  settle  ihe  practice  in  regard  to  the  conduct  of  jurors  in  this 
particular,  we  have  consented  to  consider  the  subject  as  properly 
presented. 

Judgment  affirmed  with  costs. 

WELLS,  for  pl'ff  in  error. 

MAKSHALL  M.  SI-KONG,  for  deft  in  error. 


REPORTS.  185 


GIDEON  LOW,  plaintiff  in  error,  ) 

vs.  >  Error  to  Dane  county. 

HENRY  MERRILL,  defendant  in  error, \ 

THE  date  of  a  promissory  note  is  material,  and  if  altered  without  the 
maker's  consent,  the  note  is  vitiated,  and  it  makes  no  difference  whether 
the  time  of  payment  is  accelerated  or  extended  by  the  alteration. 

If  a  promissory  note  appears  upon  its  face  to  have  been  altered,  it  is  for 
the  holder  to  prove,  and  not  for  the  maker  to  disprove  that  it  was  altered 
under  circumstances  that  will  make  it  available. 

It  is  incumbent  on  the  plaintiff  to  account  fora  suspicious  form  or  ob- 
vious alteration  of  a  note,  and  unless  he  adduces  evidence  to  explain  the 
alteration,  it  is  proper  for  the  jury  to  find  for  the  defendant. 

The  identity  of  the  note  declared  upon,  is  a  question  for  the  jury,  and 
testimony  upon  that  subject,  and  to  explain  any  alteration  or  suspicious 
appearance  of  the  note  should  be  received. 

If  a  note  has  been  altered  in  a  material  part, it  is  inadmissible  in  evidence 
for  any  purpose,  un'iess  to  defeat  a  claim  on  the  ground  of  fraud,  or  to  es- 
tablish usury,  or  to  convict  a  party  of  a  crime ;  it  cannot  be  received  as  ev- 
idence on  the  money  counts. 

Where  the  promissory  note  offered  in  evidence,  appears  on  its  face  to 
have  been  altered,  and  the  defendant  has  not  denied  its  execution  under 
oath,  still  the  plaintiff  must  prove  that  the  alteration  was  made  with  the 
consent  of  the  defendant,  before  it  can  bo  read  to  the  jury. 

Although  the  defendant  docs  not  deny  the  execution  of  the  note  under 
oath,  he  does  not  waive  any  other  legal  defence,  and  by  his  plea  he  puts  in 
issue  the  identity  of  the  note  declared  upon. 

This  was  an  action  of  assumpsit,  commenced  by  Merrill  against 
Low  in  the  Dane  District  Court. 

The  declaration  contained  two  counts  upon  two  several  prom- 
issory notes  ;  one  for  $1215  G8,  dated  April  7th,  1842,  and  the 
other  for  $300,  dated  April  14th,  1838,  payable  ninety  days  after 
date.  The  defendant  pleaded  the  general  issue,  but  did  not  deny 
the  execution  of  either  of  the  notes  under  oath.  At  the  trial  of  the 
cause,  the  plaintiff  offered  the  following  promissory  note  in  sup- 
port of  one  of  the  counts  of  his  declaration: 

"$300.  For  value  received,  I  promise  to  pay  to  Henry  Mer- 
rill, or  order,  the  sum  of  three  hundred  dollars  with  interest,  ninety 
days  after  date. 

(Signed)  "G.  LOW." 

"  Fort  Winnebago, 

[March  24,  1838.] 

"April  14,  1838." 

It  appeared  on  the  face  of  the  note,  that  the  original  date, 

24 


186  REPORTS. 

March  24,  1838,  had  been  marked  with  a  pen  so  as  lo  be  partly 
obliterated,  and  immediately  under  it  was  written,  "  April  14, 
1838. "  Tlie  defendant  objected  to  the  note  as  evidence,  unless 
the  plaintiflf  should  first  prove  that  the  date  was  altered  before  it 
was  signed,  or  aftcrw.irds  with  the  consent  of  the  defendant.  The 
court  overruled  the  objection,  and  permitted  the  note  to  be  read 
to  the  jury.  The  defendant  then  offered  to  prove  that  the  note 
had  been  altered  by  the  plaintiff  after  it  was  signed  and  executed, 
without  the  consent  of  the  defendant,  but  the  court  refused  to 
permit  him  to  prove  these  facts;  to  which  decisions  of  the  court, 
the  defendant  excepted.  The  jury  returned  a  verdict  in  favor  of 
the  plaintiff  for  the  amount  of  both  notes  and  interest,  upon 
which  the  court  rendered  judgment.  To  reverse  this  judgment, 
Low  lias  prosecuted  this  writ  of  error. 

ABBOTT,  for  plt'ff  in  error: 

One  of  the  notes  upon  which  the  judgment  in  the  court  below 
was  rendered,  showed  upon  its  face  that  it  had  been  altered  in  its 
date.  It  therefore  became  necessary  for  the  plaintiff  to  prove 
that  the  alteration  had  been  made  with  the  consent  of  the  de- 
fendant, before  he  could  be  allowed  to  read  it  in  evidence.  Chilly 
on  Bills,  212;  Johnsonvs.  TheDuke  of  Marlborough,3  StarkieTs 
Rep.  313;  5  Bing.  183. 

The  alteration  of  a  note  in  a  material  part,  without  the  consent 
of  the  maker,  invalidates  the  note;  Chilly  on  Bills,  204;  1  Chit- 
ty  on  Plead.  213;  Masters  vs.  Miller,  4  Tenn.  Rt- p.  350;  2  H. 
Bl.  141;  15  East.  29;  1  Taunt.  20;  Bank  of  the  United  States, 
vs.  Russeh  ct  als.;  3  Yeats'  Rep  .  371 ;  3  Cranch,  37. 

When  a  note  has  been  thus  altered  in  a  material  part,  it  is  in- 
admissible in  evidence  for  any  purpose  whatever  in  favor  of  the 
holder;  Jardin  ts  Payne,  1  Barn.  &  Add.  017;  7  B.  <Sc  C.,  416. 

FIELD,  for  deft  in  error: 

The  defendant  should  have  denied  the  execution  of  the  note 
under  call),  before  any  proof  can  be  required  of  the  plaintiff.  It 
has  been  said,  that  the  signature  being  genuine,  he  could  not  do 
this.  The  statute  does  not  require  him  lo  deny  the  signalure, mere- 
ly, but  to  deny  that  he  executed  such  a  note  as  is  declared  upon. 
The  issue  then  would  have  been  similar  to  the  issue  on  a  plea  of 
non  cstfac/urn  to  a  speciality.  The  plea  of  non  estfactum,  does 
not  deny  he  signature  only,  but  the  execution  of  the  instrument  in 
he  form  in  which  it  ig  sued  on;  and  it  is  a  good  plea  where  the  sig- 


REPORTS*  187 

nature  is  genuine,  if  the  instrument  has  been  altered.  The  same 
principles  apply  to  promissory  notes,  where  there  execution  is  re- 
quired to  be  denied  under  oath.  1  Blackford,  67;  3  do  57. 

Our  statute  says  that  the  instrument  shall  be  proof  that  it  was 
so  signed  or  executed,  unless  the  signature  or  execution  is  denied 
under  oath.  What  does  this  provision  mean?  Why,  that  a  note 
purporting  to  have  been  executed  by  the  defendants,  shall  be  taken 
to  have  been  so  executed;  that  is,  executed  precisely  as  it  appears 
upon  its  face  to  have  been  done,  and  as  it  is  declared  upon,  unless 
the  defence  is  made  in  the  mariner  pointed  out  by  the  statute. 

WHITON,  in  reply: 

We  contend,  that  the  note  having  been  altered  in  a  material 
part,  is  void;  and  that  it  is  not  an  instrument  that  requires  a  deni- 
al under  oath.  The  defendant  is  not  bound  to  disprove,  by  his 
own  oath  ot  other  testimony,  the  validity  of  such  a  note.  He 
cannot  deny  the  signatuie  under  oath,  for  that  is  genuine,  but  still- 
he  has  a  right  to  the  common  law  defences  against  it,  which  can- 
not be  shut  out  from  him  by  a  proper  construction  of  the  statute. 

Opinion  of  the  Court,  by  Judge  MILLER: 

This  W«s  an  action  of  assumpsit  in  the  District  Court  of  Dane 
county,  on  two  promissory  uotes,  given  by  Gideon  Low,  the  de- 
fendant in  said  court,  to  Henry  Merill,  the  plaintiff  therein.  The 
defendant  pleaded  the  general  issue,  but  did  not  file  an  affidavit 
with  his  plea,  denying  the  signature  to  or  execution  of  said  notes. 
When  one  of  the  notes  was  offered  to  be  read  in  evidence  to  the 
jury,  it  appeared  to  have  been  altered  in  the  date,  thus:  "  March 
14, 1838, "had  been  first  written  as  the  date,  and  the  word  "March" 
and  the  figures  "  14"  were  partly  obliterated  or  defaced,  and  un- 
derneath the  first  date,  "April  14,  1838,"  was  written.  The  de- 
fendant then  objected  to  the  reading  of  the  note  so  altered,  in  ev- 
idence, unless  the  plaintiff  showed  that  the  said  alteration  had 
been  made  before  tiie  said  note  was  signed  and  executed  by  the 
defendant,  or  afterwards  with  his  permission;  which  objection 
was  overruled  by  the  court,  and  the  nole  allowed  to  be  read  in  ev- 
idence. 

The  defendant  then  offered  to  prove  that  the  date  of  said  note 
had  been  altered  by  the  plaintiff,  after  it  had  been  signed  and  ex- 
ecuted, and  without  his  consent  or  permission,  which  said  offer  of 
defendant  was  overruled  by  the  court. 

Errors  are  assigned  upon  the  record,  on  these  two  orders  of  the 
District  Court. 


188  REPORTS. 

The  declaration  charges  the  note  to  have  been  given  on  the  14th 
day  of  April,  1838, -which  the  defendant  by  his  plea  denied.  In 
every  written  instrument,  the  day  laid  is  material  and  must  be 
proved  as  laid  when  the  action  is  brought  on  the  instrument  itself; 
2  Peake,  196.  If  the  plaintiff  had  proven  the  note  to  have  been 
given  on  the  14th  of  March,  it  would  certainly  not  be  the  identi- 
cal note  the  defendant  had  given  as  laid  in  the  declaration.  It  is 
through  the  note  the  plaintiff  has  a  right  of  action;  and  it  is  the 
only  medium  by  which  he  can  recover.  The  question  raised  by 
the  issue  was,  whether  or  not  the  defendant  promised  in  the  form 
stated  in  the  declaration;  and  the  substance  of  the  plea  is,  that 
according  to  that  form  he  is  not  bound  or  did  not  promise. 

It  is  conceded  that  the  date  of  a  note  is  material;  and  an  al- 
teration of  the  date  is  an  alteration  of  a  material  part,  which  vi- 
tiates it,  if  done  without  the  maker's  consent:  Chitty  on  Bills, 
204;  Bank  of  the  United  States,  vs.  Russell  and  Brown,  3  Yeates, 
391;  Masters  vs.  Miller,  2  II,  Black.  141.  And  the  principle 
is  the  same  whether  the  day  of  payment  is  thereby  accelerated  or 
extended;  Stephens  vs.  Graham,  7  Sergt.  &,  Rawle,  505.  To  in- 
sure the  identity,  and  to  prevent  the  substitution  of  one  instru- 
ment for  another,  is  the  foundation  of  the  rule,  which  is  neces- 
sary to  prevent  all  tampering  with  written  instruments. 

In  Chitty  on  Bills,  page  212,  it  is  stated,  "  that  with  respeet  to 
bills  and  notes,  and  other  negotiable  securities,  the  rule  has  been 
laid  down,  namely,  that  if  the  instrument  appear  on  its  face  to 
have  been  altered,  it  is  for  the  holder  to  prove,  and  not  for  the  maker 
to  disprove,  that  it  was  altered  under  circumstances  that  will 
make  it  available."  It  is  incumbent  on  the  plaintiff  to  account 
for  a  suspicious  form  or  obvious  alteration  of  a  note,  and  unless 
the  plaintiff  adduces  evidence  to  explain  the  alteration,  it  is  pro- 
per for  the  jury  to  find  for  the  defendants;  Johnson  vs.  The  Duke 
of  Marlborough,  2  Starkie  R.  363.  The  identity  of  the  note  is 
a  question  for  the  jury,  and  testimony  upon  that  subject,  and  to 
explain  any  alteration  or  suspicions,  should  certainly  be  received; 
Bunker  vs.  Blcckwcll,2  J.  C.  198;  Buller's  N.  P.  255;  Marshall 
vs.  Gruglcr,  10  Scrgt.  &.  Rawle,  164;  Lewis  vs.  Payne,  8  Cow- 
en,  71;  GibbsiSfKichvs.  Osborne,  2  Wend.  555;  Stephens  vs. 
Gorham,  7  Sergt.  &  Rawle,  505.  And  if  a  note  has  been  alter- 
ed in  a  material  part,  it  is  inadmissible  in  evidence  for  any  avail- 
able purpose  whatever  in  favor  of  the  holder,  until  the  alteration 


REPORTS.  189 

is  satisfactorily  explained,  unless  to  defeat  a  claim  on  the  ground 
of  fraud,  or  to  establish  usury,  or  convict  a  party  of  a  crime.  It 
cannot  be  received  in  evidence  on  the  money  counts;  Chitty  on 
Bills,  213,  and  the  case  there  cited. 

It  is  provided  in  section  18  of  the  act  concerning  testimony  and 
depositions,  on  page  250  of  the  Statutes,  that  "every  written  in- 
strument purporting  to  have  been  signed  or  executed,  by  any 
person,  shall  be  proof  that  it  was  so  signed  or  executed,  until  the 
person  by  whom  it  purports  to  have  been  signed  or  executed  shall 
deny  the  signature  or  execution  of  the  same  by  his  oath  or  affida- 
vit: But  this  section  shall  not  extend  to  instruments  purporting 
to  be  signed  or  executed  by  any  person  who  shall  have  died  pre- 
vious to  the  requirement  of  such  proof."  This  section  merely 
dispenses  with  proof  of  the  signature  or  execution  of  the  instru- 
ment, unless  the  party  shall  deny  the  same  under  oath.  It  was 
intended  for  fhe  convenience  and  relief  of  the  plaintiff.  The  de- 
fendant did  not  deny  the  signature  or  execution  by  his  oath  or  af- 
fidavit, but  he  did  not  thereby  waive  any  other  of  his  legal  rights 
at  the  trial,  but  proof  on  the  part  of  the  plaintiff  of  the  signature 
or  execution.  The  note  was  in  the  hands  of  the  payee  when  it 
was  altered  or  supposed  to  have  been  altered,  and  it  could  not  be 
presumed  that  the  defendant  would  be  cognizant  of  a  fraudulent 
or  illegel  alteration  of  his  note  before  its  presentation  at  the  bar. 
Before  then  the  plaintiff  ought  to  have  known  its  suspicious  ap- 
pearance and  legal  defects;  and  it  was  his  duty  to  fortify  himself 
on  that  point.  The  signature  or  execution  of  the  note  was  not 
the  question  in  this  case,  but  its  identity  was  made  by  the  plea, 
an  important  question  for  the  consideration  of  the  jury. 

It  is  the  opinion  of  the  Court  that  the  District  Court  should  have 
required  the  plaintiff  to  account  for  the  alteration  of  the  note,  be- 
fore he  should  have  been  permitted  to  read  it  in  evidence,  or  have 
been  entitled  to  a  verdict  upon  it:  And  as  defendant  offered  to 
prove  more  than  by  law  he  was  rnnuired  to  do,  there  was  error  in 
rejecting  his  offer. 

Judgment  reversed  with  costs. 

Judge  IRVIN  dissented  from  the  opinion  of  the  court. 

ABBOTT  &  WHITON,  for  plt'ff  in  error. 

FIELD  &  BOTKIN,  for  def?t  in  error. 


190  REPORTS, 


GEORGE  W.  JONES,  plaintljf  in  error,     1 

rs.  >  Error  to  Grant  county, 

DANIEL  WEBSTER,  defendant  in  error,  \ 

AN  affidavit  for  an  attachment  which  states  the  nmonnt  of  the  plaintiffs 
demand  to  be  "over  nnd  above  the  sum  of  fifty  dollars,"  does  not  sufficient- 
ly state  the  amount,  to  authorize  the  issuing  of  the  writ. 

Jones  sued  out  a  writ  of  attachment  against  Webster  in  the 
Grant  Dislrict  Court.  The  affidavit  was  made  by  F.  J.  Dunn, 
attorney  for  the  plaintiff,  and  stated:  "The  he,  affiant,  is  the  at- 
torney of  George  W.Jones,  and  affiant  further  says,  that  he  verily 
believes  that  Daniel  Webster  is  indebted  tosaid  George  W.Jones 
in  a  sum  of  money  over  and  above  the  sum  of  fifty  dollars,  lawful 
money,  and  that  said  indebtedness  arises  out  of,  and  is  founded 
upon  contract  in  writing,  s'yled  in  said  contract, 'a  memorandum 
of  agreement :'  Affiant  further  says  that  ihe  said  Daniel  Webster 
is  not  a  resident  of  Wisconsin  Territory."  Satisfaction  was  in- 
dorsed upon  the  affidavit  of  the  District  Judge. 

At  the  March  term,  1843,  the  defendant  by  his  counsel,  moved 
the  court  to  quash  the  writ  and  dismiss  the  cause  on  the  ground 
of  the  insufficiency  of  the  affidavit:  The  court  sustained  the  mo- 
tion and  dismissed  the  suit;  to  reverse  which  decision,  Jones  has 
prosecuted  this  writ  of  error. 

Dux.\,  for  pl'fT  in  error: 

The  court  below  quashed  the  writ  and  dismissed  the  case,  be- 
cause tlu;  amount  and  nature  of  the  plaintiff's  demand  were  not 
sufficiently  stated  in  the  affidavit. 

The  amount  of  the  indebtedness  cannot  always  be  stated  with- 
out compromising  the  affunt  on  a  question  of  veracity.  Where 
the  damages  are  unliquidated,  and  cannot  be  liquidated  except  by 
the  verdictof  a  jury,  the  plaintiff  cannot  swear  to  any  precise  sum, 
as  the  true  amount  of  his  just  demand.  In  this  case,  the  sum  of 
fifiy  dollars  and  over,  is  stated  to  be  due,  which  brings  the  case 
within  the  jurisdiction  of  the  court,  and  entitles  the  plaintiff  to  the 
writ. 

The  nature  of  the  indebtedness  is  stated  more  particularly  than 
the  statute  requires.  It  is  stated  to  be  founded  on  a  written  con- 


REPORTS.  191 

tract,  styled  fa  memoiandum  of  agreement.'    This  is  all  that  is 
necessary  to  be  stated. 

COLLINS,  for  deft  in  error: 

One  of  the  principal  reasons  for  quashing  the  writ  is,  that  the 
urnount  of  (he  plaintiff's  demand  is  not  sufficiently  stated  in  the 
affidavit;  and  it  is  said,  lhat  in  sustaining  this  ground,  the  District 
Court  erred.  The  statute  is  as  positive  in  this  requirement  as 
any  other,  to  authorize  the  writ;  and  if  the  statute  must  be  strict- 
ly pursued,  as  this  Court  has  repeatedly  said  it  must,  this  aflTida* 
vit  cannot  be  sustained.  A  reason  for  requiring  the  amount  to  be 
stated,  is  that  the  officer  may  not  take  more  properly  by  the  writ, 
than  will  be  sufficient  to  secure  the  plaintiff's  demand.  If  the  de- 
mand is  so  uncertain  or  doubtful  that  it  cannot  be  stated  at  all.  the 
plaintiff  is  not  entitled  to  the  writ.  The  statute  was  not  intend- 
ed for  the  recovery  in  this  way,  of  damages  that  cc-iinol  be  liqui- 
dated. 

The  affidavit  as  to  the  nature  of  the  demand,  is  defective. — 
True,  it  slates  that  it  arises  upon  a  contract  in  wiitins,  but  what 
sort  of  a  contract  it  is,  is  left  to  conjecture.  It  may  be  a  contract 
void  at  law,  and  upon  which  a  recovery  cannot  be  had.  The  na- 
ture of  the  contract  should  be  so  far  stated,  that  the  court  can  see 
that  it  may  be  the  legal  foundation  of  the  demand. 

The  whole  ground  stated,  except  the  non-residence  of  the  de- 
fendant, is  stated  as  a  mere  matter  of  belief.  This  is  not  suffi- 
cient under  the  statute,  unless  the  facts  and  chcmnsiances  upon 
which  the  belief  is  founded,  are  also  stated,  and  these  facts  and 
circumstances  must  be  such  as  to  warrant  the  belief. 

BURNETT,  in  continuation: 

The  statute  requires  that  the  facts  and  circumstances  necessa- 
ry to  entitle  the  party  to  a  writ  of  attachment  must  be  proven  to 
the  satisfaction  of  the  judge  or  commissioner.  It  is  not  one  fact 
or  another  that  must  be  so  proven,  but  every  substantive  matter 
that  the  law  makes  necessary  to  entitle  the  party  to  the  writ,  must 
be  made  to  appear  affirmatively  by  proof,  before  the  writ  issues. — 
The  first  fact  that  must  be  thus  made  to  appear  is,  that  the  de- 
fendant is  indebted  to  the  plaintiff,  then  that  the  indebtedness 
aiises  out  of,  is  founded  upon,  or  sounding  in  contract,  or  upon  a 
judgment  or  decree  of  a  court,  and  then  the  nature  and  amount 
of  the  plaintiff's  demand.  In  this  case,  there  is  no  sum  stated  as 
the  amount  of  the  plaintiff's  demand,  and  it  is  useless  to  argue 


1 92  REPORTS. 

that  point;  but  the  fact  of  any  indebtedness  at  all,  is  only  stated 
as  a  matter  of  belief  of  the  affiant,  and  neither  fact  nor  circum- 
stance is  given  as  the  foundation  of  the  belief.  This  is  not  suffi- 
cient. This  court  said,  in  the  case  of  Morrison  vs.  Ream,  decid- 
ed at  the  last  terra,  that  "the  facts  necessary  to  entitle  a  party  to 
the  writ  of  attachment,  must  be  proven  to  the  satisfaction  of  judge 
or  commissioner.  Proof,  that  is  legal  evidence  from  the  party  or 
a  witness,  is  required.  Mere  belief  is  not  sufficient;  nothing 
short  of  facts  and  circumstances  within  the  knowledge  of  the  affi- 
ant, will  do."  Again:  "Tho  officer  must  be  satisfied,  and  he 
must  be  so  satisfied  from  proof  of  facts  and  circumstances,  not 
from  the  belief  of  any  one."  And  in  relation  to  the  charge  of 
fraud,  the  Court  in  the  same  case  says:  "The  officer  should  have 
at  least  such  strong  presumptive  proof,  as,  being  uncontradicted 
and  unexplained,  would  induce  him  to  convict  the  defendant  of 
the  charge  if  he  were  on  trial  before  a  petit  jury."  Apply  the 
principles  of  that  opinion  to  this  case,  and  the  affidavit  amounts  to 
nothing.  The  same  principle  which  the  Court  applied  to  the 
charge  of  fraud,  would  require  that  the  proof  of  the  indebtedness, 
its  nature  and  amount,  should  be  of  such  a  strong  and  presump- 
tive character,  that  uncontradicted  or  unexplained,  would  be  suffi- 
cient to  induce  the  officer  to  find  and  fix  a  verdict  in  favor  of  the 
plaintiff,  if  the  case  were  on  trial  before  a  petit  jury. 

The  statute  requires  the  affidavit  to  be  made  by  the  plaintiff  or 
some  credible  witness.  A  witness  in  the  legal  sense,  is  one  who 
sees  and  knows  the  things  of  which  he  testifies.  The  witness 
meant  by  the  statute  should  have  personal  knowledge  of  the  facts 
and  circumstances  which  he  states,  and  it  should  appear  in  the 
affidavit  in  some  way,  that  he  is  such  a  witness.  The  vague  be- 
lief of  a  third  person,  who  knows  nothing  of  the  facts  and  cir- 
cumstances, is  not  as  good  as  the  belief  of  the  plaintiff  who  does 
know,  and  this  court  has  said  that  the  belief  of  no  one  will  do. 

The  nature  of  the  indebtedness  must  be  stated.  It  is  not  suffi- 
cient that  it  is  upon  a  contract  in  writing.  Take  the  converse, 
and  suppose  that  it  is  stated  to  be  upon  a  contract  not  in  writing, 
would  it  be  sufficient?  Certainly  not.  There  is  almost  as  great 
a  variety  of  contracts,  as  to  their  nature,  in  writing  as  by  parol. — 
If  the  legislature  had  intended  such  a  statement  to  be  sufficient, 
the  statute  would  have  required  the  affidavit  simply  to  show  wheth- 
er the  contract  was  in  writing  or  not. 


REPORTS*  193 

DUNN, in  reply: 

Thfi  slating  the  demand  lo  be  upon  contract,  and  that  it  was  an 
instrument  of  writing  styled  a  memorandum  of  agreement,  is  suf- 
ficient as  to  [lie  nature  of  the  demand,  and  it  was  not  necessary 
to  sot  out  tlie  terms  and  conditions  of  the  agreement.  The  stat- 
ute does  not  require  such  particularity. 

It  is  important  to  inquire,  what  are  the  facts  and  circumstances 
necessary  to  be  stated?  There  is  a  marked  difference  between 
fact  and  circumstance;  between  positive  knowledge  and  mere  be- 
lief, Whore  a  matter  of  fuel  is  positively  known  and  positively 
stated,  there  is  no  belief  upon  the  subject,  and  neither  belief  or 
the  reason  for  it,  is  necessary  to  be  stated. 

Opinion  of  the  Court,  by  Judge  IKVIN: 

This  case  came  up  on  error  to  the  District  Court  of  Grant  coun- 
ty, and  is  a  proceeding  in  attachment. 

The  writ  of  attachment  was  sued  out  on  the  affidavit  of  Fran- 
cis J.Dunn  in  these  words:  "  That  he,  affiant  is  the  attorney  of 
George  VV.  Jones,  and  affiant  further  says,  that  he  verily  believes 
that  Daniel  Webster  is  indebted  to  said  George  W.Jones  in  a  sura 
of  money  over  and  above  the  sum  of  fifty  dollars  lawful  money,  and 
thafsaid  indebtedness  arises  out  of  and  is  founded  upon  contract 
in  writing,  styled  in  said  contract,  a  memorandum  of  agreement; 
affi.iht  further  says  that  the  said  Daniel  Webster  is  not  a  resident 
of  Wisconsin  Territory."  On  this  affidavit,  the  Jtidge  of  thedis- 
trict  indorsed  his  satisfaction  of  the  truth  of  the  facts  therein  sla- 
ted. 

At  the  March  term  of  said  court  for  1843,  the  defendant,  by 
his  counsel,  moved  the  court  to  quash  the  writ  and  dismiss  the 
cause  for  the  following  reason?,  viz:  "  1.  Because  of  insuffi- 
ciency of  the  affidavit:  1.  In  that  said  affidavit  was  not  made  by 
plaintiff,  or  a  credible  uitness,  but  by  the  attorney  of  said  plaintiff, 
who  is  not  a  witness  in  contemplation  of  law:  2.  In  that  the 
amount  of  plaintiff's  demand  is  not  set  forth:  And  3.  In  that 
the  circumstances  upon  which  the  belief  of  the  facts  set  forth  is 
founded,  are  not  stated. 

2.  Because  it  appears  by  the  amended  return  of  the  sheriff, 
that  in  serving  the  writ  in  said  cause,  he  did  not  enter  upon,  the 
premises  attached,  in  order  to  attach  and  appraise  them:"  Which 
motion  was  sustained  by  the  District  Court,  and  to  which  decision 
of  the  court,  the  plaintiff  by  his  attorney,  excepted;  and  for  error, 

25 


194  REPORTS. 

assigns  the  following  causes,  viz:  "  1.  The  court  erred  insustdiny 
ing  the  second  and  third  reasons  of  (he  defendant  in  his  moiion 
to  quash  the  writ  and  dismiss  ilie  proceedings  licretn.  2.  Thd 
court  erred  in  quashing  the  writ  and  dismissing  the  procceeings 
herein." 

The  decision  of  llie  court  below  upon  the  motion  was  generaf, 
nhd  so  farns  'he  record  show?,  whilst  in  llie  assignment  of  errors, 
it  is  noticed  as  having  been  given  upon  llio  second  and  lliiid  rea* 
son  assigned  for  quashing  the  Wril,  which  include  this  portion  of 
the  Affidavit.  "And  affiint  further  says  that  ho  verily  believes 
thai  Daniel  Webster  is  indebted  to  said  George  W.  Jones  in  a  sum 
of  money  over  and  above  the  sum  of  fifty  dollar?,  hwful  money, 
and  lint  said  indebtedness  arises  out  of  and  is  founded  upon  con- 
tract in  writing,  styled  in  the  said  contract)  a  memorandum  of 
agreement." 

The  law  provides  that  "  to  authorize  the  issuing nn  attachment 
in  any  cnsc,  ihe  defendant  must  be  indebted  to  the  plaintiff  in  & 
cause  of  action  arising  out  of,  founded  upon,  or  sounding  in  con- 
trnc1,  or  upon  a  judgment  or  decree  of  some  court  of  law  or  chan- 
cery;11 (2d  section  of  the  act  of  1812;)  and  by  the  3d  section  Ft 
further  provides,  that  "  Uie  facts  necessary  to  entitle  a  party  to  a 
\vtit  of  attachment,  shall  be  proven  to  the  satisfaction  of  a  Dis- 
trict Judge  or  of  a  Supreme  Court  Commissioner  of  the  proper 
county,  by  the  rffidavil  of  the  plaintiff  or  some  credible  witness, 
Slating  therein  the  nature  and  amount  of  ihe  plainlitPs  demand, 
and  the  c'rcimistr.nccs  upon  \\hicli  the  belief  of  such  facts  is 
founded,  and  such  officer  shall  indorse  the  far. I  of  his  satisfaction 
on  the  affidavit,  which  shall  be  filed  with  the  clerk  of  the  courl 
before  the  wiit  shall  issue." 

The  first  question  presented  in  this  case,  as  contained  in  the 
motion  below,  which  was  sustained  in  general  terms,  is  regarded 
untenable.  Upon  the  second  and  third  questions,  the  inquiry  re- 
lates to  ihe  nature  and  amount  of  the  demand,  and  as  ibis  case  was 
«ubmi(ted  to  a  court  consisting  of  two  of  the  three  members,  and 
ns  those  differ  as  lo  the  sufficiency  of  the  statement  in  relation  lo 
the  nature  of  the  demand,  the  statute  will  be  considered  as  un- 
conslrued  iherein.  but  in  relation  to  the  amount,  I  here  is  no  such 
division  of  opinion.  The  law  requires  that  the  nature  and  amount 
of  the  demand  shall  be  stated.  Is  the  amount  stated  herein? — 
The  koguago  ia  this,  as  used  by  the  affiint:  "  That  nu  verily  be- 


REPORTS,  195 

lieveg  thot  Daniel  Webster  is  indebted  (o  said  George  W.  Jones 
5n  a  sum  of  money  over  and  above  the  sum  of  fifty  dollars/'  From 
an  examination  of  the  language  used,  it  will  be  readily  perceived 
that  no  sum  is  slated  at  nil.  It  is  (HIP,  that  the  .'ilTnnt  says  ho 
verily  believes  that  I!:R  d<;f<-ndant  is  indebted  in  a  sum  of  money 
over  and  above  fifty  doll  ir?;  but  at  what  point,  in  the  vast  range 
of  numbers,  the  mind  is  left  wholly  to  t!ie  resources  of  the  imag- 
ination. Ii  would  he  unwise  and  unsafe,  and  wholly  at  war  with 
the  practice  properly  established  in  the  harsh  remedy  of  attach- 
ment, to  regard  such  a  statement  of  the  amount  of  the  demand. 
ns  sufficient.  The  District  Court  therefore  did  right  iu  sustaining 
the  motion  to  quash,  particularly  when  it  is  remembered,  that  this 
uncertain  sum  is  slated  under  the  mere  belief  of  the  ufiiant.-— 
The  statement  of  non-residence  is  positive  and  unequivocal  by  a 
credible  witness,  and  not  liable  to  the  objection  urged  against  it. 

Believing,  as  lliis  court  does,  thai  the  statement  of  vhe  amount 
was  wholly  insufficient,  we  affirm  the  judgment  of  the  D,3trict 
Court  with  costs. 

DUNN,  for  pit 'IT  in  error. 

COLLINS  and  BUUXETT,  for  deft  in  error. 


WILLIAM  B.  SLAUGHTER.prjfm  error,) 

rs.  V  Error  to  Iwa  county. 

JOHN  BEVANS,  def>l  in  error.  } 

THE  return  of  n  writ  is  presumed  to  hnrc  been  mndoon.  the  return  flay, 
unless  the  date  nf  the  return  specially  and  pnsiiivrly  appear*  by  indorse- 
ment, nn  the  writ  i'sclf  or  an  entry  ofrecord,  showing  a  different  lime  when 
the  return  \\  MS  -ion  'illv  riniln. 


V  iiHiidiint'nr,  the  first  default  is  so  much   a  matter  of 
t  without  p",evi"ii3  piihliciitiuii  or  befuri.'  j  roof  of  j.ubii- 
i  i  r.Mi1. 
writ  of  iitlaclimcnt  cannot  hoaniendei]  under  aay  cir- 


In  p'/ocecdiiiEs 
form,  ilvir  to  circr 
cation  is  filed,  is  n 

An  iilliihvii  fur  ; 
cninstaur'-s. 

'1'he  ii  d  )rsernrnl  of  s-itisfnr'iorr  on  nn  affidavit  for  n  w-rit  ofatf  ifhTirvrkt, 
IB  nil  indispens  iblr  nre-rcrjiii^itc  to  ilie  issuing  of  the  wvir,  and  where  a 
writ  has  been  issued  wiihont  such  indorsement.  tli«  nfficcr  cnniKii  he  per« 
nutted  to  come  into  court,  pending  the  suit,  and  iudorv  hu  KXtiaTaetioa. 


196  JtBPORTS. 

The  law  does  not  confine  the  plaintiff  in  an  attachment,  in  suing  out  his 
writ,  to  the  county  where  the  defendant  resides  or  where  he  is  found  ;  the 
affidavit  that  the  defendant  lias  property  in  the  county  where  the  writ  is- 
sues, is  a  sufficient  authority  for  commencing  in  such  county,  if  ihe  point 
were  doubtful. 

Wlipre  ihc  plaintiff  had  obtained  a  decree  in  chancery  for  the  balance 
due  him  upon  the  corning  in  of  'he  master's  report  on  fortclosins;  a  mort- 
gage, such  dccrer  may  he  pleaded  in  bar  as  a  fovmer  recovery,  in  an  action 
ai  law  between  the  same  parties  for  the  recovery  of  the  same  demands. 

Bevans  sued  out  a  writ  of  attachment  against  Slaughter  in  the 
Iowa  District  CoUrt,ort  the  10th  September,  1839.  On  the  same 
d-iy,  on  different  affidavits,  other  writs  were  issued  to  ihc  counties 
of  Brown,  Dane, Grant,  Milwaukee,  and  Racine.  There  was  no 
indorsement  of  satisfaction  on  the  affidavit  for  llio  writ,  by  the  of- 
ficer before  whom  it  was  mnde.  The  sheriff  of  Iowa  county  re- 
turned the  writ  direcicd  to  him  nnllabona, and  served  personally, 
but  how  or  when  the  personal  service  was  mnde,  does  not  appear 
by  the  return.  The  writs  to  Grant  and  Racine  appear  not  to  have 
been  returned  at  all,  and  levies  were  made  upon  properly  in 
Brown,  Dane,  and  Milwaukee.  At  the  April  term,  1840,  the 
first  dei'jHilt  of  the  defendant  was  entered;  and  at  (lie  September 
term,  1840,  the  plaintiff  asked  leave  of  the  court  for  the  officer  be- 
fore whom  the  ufiiJavit  was  made  to  come  in  and  indorse  his  sat- 
isfaction, which  was  objected  to  by  the  defendant,  but  the  court 
overruled  the  objection,  and  grat.ted  the  leave,  and  thereupon  the 
officer  indorsed  upon  the  affidavit  that  he  was  satisfied,  at  the 
time  when  it  was  made,  of  the  truth  of  the  facts  therein  stated,  to 
which  the  defendant  excepted.  At  the  same  term,  and  previous 
to  the  indorsement  of  satisfaction,  the  second  default  of  the  de- 
fendant was  entered,  and  the  plaintiff  afterwards  filed  his  declara- 
tion in  nss-urnpsit  on  the  21st  September,  and  on  his  motion  the  de- 
fendant was  ruled  to  plead  to  the  said  declaration  by  the  next 
morning,  and  on  the  same  day  proof  of  the  publication  of  notice 
of  the  writs  to  Grant,  Brown,  Milwaukee,  and  D.me,  was  filed  for 
the  first  time,  but  no  publication  appears  to  have  been  made  of 
the  writs  issued  to  Iowa  and  Racine;  afterwards,  at  thesime  term, 
the  defendant,  in  response  to  the  rule  to  plead,  made  a  motion  to 
dismiss  the  proceedings,  on  the  ground  that  at  the  commencement 
of  the  suit  he  resided,  and  still  continued  to  reside,  in  the  county 
of  Dane,  which  fact  was  made  to  appear  to  the  satisfaction  of  the 
court. 

At  the  April  term,  1840,  the  motion  to  dismiss  was  overruled 


REPORTS.  197 

by  the  court,  to  which  the  defendant  excepted;  whereupon,  the 
defendant  filed  a  plea  in  abatement,  traversing  the  truth  of  ihe  af- 
fidavit, upon  which  an  issue  was  made  nnd  a  jury  empinnelled, 
who  returned  a  verdict  sustaining  the  affidavit;  and  afterwards,  at 
the  same  term,  the  plaintiff  filed  a  second  di.-chralion  in  assump- 
sit,  nnd  afterwards,  on  the  2i)i|j  day  of  Apiil,  the  defendant  filed 
his  plea  ofgor.cral  issue,  and  algn  the  following  special  plea  in  bar: 

"And  for  further  plea  in  this  behalf,  the  said  defendant,  by  leave 
of  the  court  here  had,  s.iys:  that  heretofore,  to  wit :  in  the  Septem- 
ber term,  in  the  year  1840,  in  the  said  District  Court  in  the  said 
county  of  Iowa,  and  after  the  commencement  of  this  suit,  the  said 
plaintiff,  by  the  consideration,  judgment  and  decree  of  the  said 
Court,  recovered,  in  a  certain  suit  in  chancery  ihcn  and  there  de- 
cided in  the  said  D:strict  Court,  in  which  the  said  John  Bevans 
was  complainant,  and  said  William  B.  Slaughter  was  defendant, 
against  the  said  defendant,  the  sum  of  five  thousand  three  hundred 

aud  eigh'y-seven  dollars  and  cents,  on  occasion  of  the  not 

performing  of  the  same  identical  promises  and  undertakings  in  the 
said  declaration  mentioned,  together  with  his  costs  by  him  about 
his  suit  in  that  behalf  expended,  whereof  the  said  defendant  was 
convicted,  as  by  the  record  of  the  proceedings  thereof,  still  remain- 
ing in  the  said  District  Court,  at  the  county  aforesaid,  more  fully 
and  at  large  appears,  which  said  judgment  and  decree  still  remains 
in  full  force,  nnd  not  reversed,  satisfied  or  made  void,  and  this  he  is 
ready  to  verify,  wherefore  he  prays  juJgtnent,"  &/c. 

The  plaintiff  filed  a  joinder  in  issue  to  the  plea  of  general  is- 
sue, and  a  general  demurrer  to  the  special  plea. 

Al  the  September  term,  1841,  the  plainiiQ"  entered  a  nolle  pro- 
sequi  upon  his  second  declaration,  and  the  record  does  not  show 
to  which  declaration  the  pleas  were  pleaded,  but  they  were  both 
for  Die  same  cause  of  action;  and  at  the  same  term  the  court  sus- 
tained the  general  demurrer  to  the  defendant's  special  plea  in 
bar. 

Previous  (o  this,  Bevans  had  filed  a  bill  in  chancery  against 
Slaughter  in  the  Iowa  District  Court  to  foreclose  a  mortgage  that 
had  been  given  to  secure  the  payment  of  the  same  promissory 
notes  thit  \vnre  declared  upon  ia  this  case.  Upon  the  corning  in 
of  the  master's  report  of  the  sale  of  the  mortgaged  premises,  the 
court  decreed  against  Slaughter  the  payment  of  the  balance  due 
of  the  mortgage  debt,  according  to  the  provisions  of  the  statute- 


1 93  REPORTS. 

Pending  this  suit,  Iho  complainant  made  a  motion  in  the  chancery 
cause  for  leave  to  proceed  in  his  action  at  law,  which  was  granted 
by  the  court. 

This  c  i use  was  tried  at  tho  September  term,  1841,  and  upon 
the  trial,  the  j  iry  returned  a  verdict  in  favor  of  tho  pliiiitiff  fur 
§j30S  41).  upon  wbicli  tho  court  rendered  judgment.  Slmghter 
sued  out  a  writ  of  error,  and  assigned  iho  following  errors  in  iho 
record  of  iho  proceedings  of  the  court  below. 

1.  Tho  court  erred  in  entering  the.  first  default  of  tbo  defend- 
ant before  proof  of  publication  filed. 

2.  The  court  erred  in  permitting  tbo  afildivit  to  be  amended. 

3.  The  court  erred  in  rendering  final  judgment  before  two  de- 
faults of  ihe  defendant  had  been  entered. 

4.  The  court  erred  in  overruling  the  motion  to  dismiss. 

5.  The  court  erred  in  sustaining  tho  demurrer  to  the  second 
plea  of  (lie  defendant. 

G.     The  court  erred  in  rendering  final  judgment  in  the  case. 

MOSES  M   STRONG,  for  pl'rT  in  error: 

The  errors  assigned  in  the  proceedings,  prior  to  the  filing  of  tho 
plea,  may  be  considered  as  technical.  But  the  proceeding  being 
by  attachment,  the  pluintiiF  must  be  held  to  the  strictest  comply 
ance  with  the  law,  in  every  particular.  The  defiult  taken  at  tho 
April  term,  18.0,  was  erroneous,  because  then  no  proof  of  publi- 
cation had  been  filed.  The  only  question  is,  whether  filing  tho 
proof  at  the  September  term  cures  this  defect?  We  say  it  did  not, 
because  a  man  cannot,  regularly,  be  defaulted  until  IK;  has  been 
legally  notified,  and  proof  of  that  fact  is  made  to  the  court.  Again, 
the  proof  that  was  filed  did  not  relate  to  the  original  writ,  and  of 
course  it  was  not  sufficient  to  support  the  proceedings  on  the  ori- 
ginal writ.  If  the  default  was  illegally  entered,  it  was  error  in  the 
court  to  rule  tho  defendant  to  plead. 

At  the  lime  of  thn  first  default,  satisfaction  was  not  indorsed  on 
the  affid  ivil,  and  the  proceedings  were  at  tint  time  irregular,  if 
not  void.  To  cure  this  defect,  the  court  permitted  th-o  ollicer  to 
come  in  at  the  September  term,  and  indorse-  his  satisfaction.  Wo 
contend  that  the  court  had  no  ri^ht  to  allow  I  he  indorsement  to  bo 
made  at  that  time;  but  if  it  had,  Ihe  previous  proceedings  wero 
irregular,  and  on  that  account  alone,  the  judgment  ought  to  bo 
reversed. 

Tho  next  point  is  of  more  importance.    The  court  below  ought 


REPORTS.  199 

to  have  sustained  the  motion  to  dismiss  mncic  nt  the  September 
term,  1840.  Tlic  writ  to  Iowa  county  was  returned  nvlla  bonat 
and  of  ils  issuing  (hero  has  never  lireri  any  notice  published.  Tlio 
doferidiint  resided  in  i!ie  county  of  Dane.  The  general  hw  in  re- 
lation lo  civil  proceedings  docs  not  apply  to  cases  of  this  kind. 
This  is  n  proceeding  in  rcm^  and  cannot  be  had  in  a  county  where 
the  (!(•('(  ndani  does  ni.t  reside,  and  wlierc  lie  h  ;s  no  properly. 

The  defendant's  plea  of  former  recovery,  if  true,  was  certainly  a 
bar  to  the  action.  It  is  not  denied  that  former  recovery  is  a  good 
plea  in  har.  This  plea  is  in  technical  form,  and  no  objection  was 
taken  to  it  on  th.it  account.  Then,  hy  all  rules  of  pleading,  iho 
plaintiff  should  have  replied  and  rnr.dc  an  issue  of  fact  upon  it; 
but  he  chose  to  demur,  arid  make  an  issue  of  law,  and  the  court, 
upon  this  issue,  decided  against  the  defendant.  The  court  can- 
noi  travel  out  of  ihc*  record  r.nd  consider  facts,  in  disposing  of  a 
demurrer,  and  unless  this  plea  is  defeated  by  facts,  I  cannot  ima- 
gine upon  what  oilier  ground  it  can  be  disposed  of  against  tho 
defendant. 

JACKSOX,  for  defendant  in  error: 

Tire  first  objections  taken,  are  ng-iinst  the  regularity  of  the  de- 
faults. The  statute  does  not  require  that  proof  of  the  publication 
of  notice  should  he  filed  before  taking  a  default.  It  is  immate- 
rial, so  that  publication  is  duly  made,  at  what  time  tl.e  proof  of  it 
is  filed.  The  record  shows,  that  although  the  proof  was  not  filed 
at  the  time,  that  the  publication  was  made,  and  tint  is  all  tint  is 
required.  But  if  the  def.iult  was  irregiilaily  taken,  the  defendant 
should  have  come  into  court  and  moved  lo  set  it  aside.  Tho  de- 
fect, if. any  such  existed,  was  cured  by  the  plea;  1  Cowcn's  Trea- 
tise, 490,524;  arid  the  defendant  is  estopped  by  his  plea  from  al- 
ledging  any  thing  against  the  regnhiity  of  the  previous  proceed- 
incp.  The  defects  are  also  cured  by  verdict.  Slat.  Wis.  259. 

o  J 

The  indorsement  of  satisfaction  was  made,  nunc  pro  func,  nnd 
does  not  appear  lo  be  objectionable.  It  was  certainly  allowable 
under  the  statute  of  amendments. 

The  plaintiff"  below  certainly  had  the  right  to  bring  his  suit  in 
Iowa  county  if  he  chose  to  do  so.  The  statute  authorizes  suits 
by  attachment  to  be  commenced  in  any  county,  and  writs  to  bo 
issued  to  any  other  county  in  the  Terriloiy  where  there  is  prop- 
erty. The  plaintiffs  affidavit  stated  that  the  defendant  had 
property  in  Iowa  county,  and  although  the  sheriff  did  not  find  it, 


200  REPORTS. 

the  defendant  himself  was  found,  and  personally  ser?ed,  and  tho 
court  decided  correctly  in  overruling  the  motion  to  dismiss. 

The  last  point  is  on  the  decision  <if  the  court  on  the  demurrer 
to  the  special  plen.  This  suit,  and  »he  ch;mcery  suit,  were  used 
concurrently  lo  collect  a  debt  secured  by  mortgage,  and  for  which 
tho  mortgaged  premises  were  wholly  inadequate.  The  statute 
authorizes  the  plaintiff  to  pursue  concurrent  remedies  in  such  case; 
Stal.  Wis.  293.  In  the  chancery  c.iuse,  the  complainant  had  ob- 
tained leave  of  the  chancellor  to  proceed  in  this  action  at  law,  both 
cases  being  in  the  same  court,  and  pending  at  the  sime  time. 
The  court  isalw;i)s  bound  to  notice  its  own  record?,  and  to  know 
what  has  been  done  in  the  court.  The  plea  was  against  the  leave 
obtained  in  chancery,  and  might,  have  been  rejected  on  motion. 
The  decision  on  the  demurrer  was  proper  in  the  case. 

DUNN,  in  continuation: 

If  there  were  any  irregularities  in  the  proceedings,  they  were 
cared  by  the  plea  and  verdict;  the  defendant  not  having  taken  ad- 
vantage of  them  at  the  proper  time.  Questions  as  to  the  publi- 
cation of  notice,  are  questions  of  fact,  and  where  they  are  dis- 
puted, (hoy  must  be  tried  by  a  jury;  they  are  not  questions  of 
law  fur  the  decision  of  the  court. 

There  is  no  question  of  the  propriety  of  the  decision  in  allow- 
ing ihe  officer  to  indorse  his  satisfaction  upon  the  affidavit;  that 
is,  that  he  was  satisfied  at  the  lime  when  it  was  mude.  It  did  not 
alter  the  fact,  hut  furnished  ihe  court  with  the  evidence  of  the 
fact.  TJie  officer  had  enough  before  him  to  satisfy  him.  Tho 
record  shows  the  best  evidence  that  the  facts  existed  lo  entitle 
the  plaintiff  to  the  writ.  Tim  defendant  traversed  ihe  affidavit  by 
a  p!ea  in  abatement,  and  the  jury  found  the  affidavit  to  be  true. 
The  statute  of  amendments  fully  authorized  the  discretion  which 
the  District  Court  exercised  in  allowing  the  amendment  to  be 
made. 

The  decision  of  the  court  on  the  demurrer,  is  the  only  doubtful 
point  in  the  case;  and  when  the  record  is  examined,  there  will  be 
enough  found  to  sustain  that  decision.  The  plea  itself  is  bad, 
because  it  sets  up  a  judgment  of  former  recovery  in  a  suit  in 
chancery.  A  judgment  cannot  be  entered  in  a  chancery  cause, 
and  such  a  plea  cannot  be  sustained  as  a  good  plea  of  former  re- 
covery. Beside,  the  plea  was  against  a  former  order  of  the  same 
court,  in  a  suit  in  chancery  between  the  same  parties.  The  re* 


201 

cords  of  the  court  are  matters  of  law,  arid  the  court  is  bound  to 
take  notice  of  them,  and  may  do  so  on  demurrer. 

BURNETT,  in  reply: 

There  are  four  principal  points  for  the  plaintiff  in  error,  that 
will  embrace  the  whole  case. 

First:  The  objections  to  the  defaults  taken,  the  service  of  pro- 
cess, and  the  publication  of  notice. 

Second:  The  permission  of  the  court  to  enter  the  indorsement 
of  satisfaction  on  the  affidavit. 

Third:  The  overruling  of  the  motion  to  dismiss. 

Fourth:  The  decision  on  the  demurrer  to  the  special  plea  in 
bar. 

First:  This  is  a  proceeding  under  the  attachment  law,  as  it 
stood  in  1839.  Under  that  law,  the  only  way  of  bringing  the  de- 
fendant into  court,  was  by  the  levy  of  the  writ  and  publication  of 
notice.  The  writ  operated  on  the  property  alone,  and  there  was 
no  such  thing  as  personal  service.  Publication  of  notice  was  made 
to  take  the  place  of  a  summons.  If  this  has  not  been  duly  made, 
the  writ  shall  be  quashed  j  there  is  no  alternative,  for  so  says  the 
law.  Publication,  then,  is  an  affirmative  matter  which  the  plain- 
tiff must  make  appear,  and  if  he  fails  to  do  so,  the  court  must  act 
upon  the  case.  If  the  defendants  is  sued  by  summons,  the  court 
can  take  no  action  in  the  case  until  the  sheriff  retuins  the  process 
served;  and  in  attachment,  publication  of  notice  standing  in  the 
place  of  the  service  of  a  summons,  the  court  cannot  regu- 
larly default  the  defendant  until  it  is  proven  to  have  been  duly 
made.  In  this  case,  there  never  has  been  such  a  publication  as 
the  law  requires;  there  has  been  none  of  the  original  writ,  the 
basis  of  all  the  subsequent  proceedings.  The  proceedings  being 
irregular  in  this  particular,  the  judgment  ought  to  be  reversed. 
But  it  is  said  that  we  have  waived  all  these  defects  by  pleading  to 
the  declaration,'  and  the  court  has  been  referred  to  the  law  as 
laid  down  in  Cowen's  Treatise.  Counsel  seem  to  mistake  the 
law  and  ils  application. .  In  the  same  authority  it  is  stated,  imme- 
diately following  what  has  been  read  to  the  court,  that  where  the 
defendant  appears  and  makes  a  motion  in  the  cause,  which  is 
overruled,  and  afterwards  pleads,  the  plea  does  not  admit  the  re- 
gularity of  the  proceedings.  This  is  our  case.  We  made  a  mo- 
lion  to  dismiss,  which  was  overruled,  and  had  to  plead  in  answer 
to  a  rule  of  the  court,  and  the  plea  admits  nothing. 

26 


202  REPORTS. 

Second :  The  court  below  ought  not,  as  we  contend,  to  have 
allowed  the  officer  to  indorse  his  satisfaction  on  the  writ,  pending 
the  proceedings.  This  court  had  decided  at  the  August  term, 
1.840,  in  the  case  of  Mayhew  <$•  Dudley  vs.  Mayhew,  that  the  sat- 
isfaction of  the  officer  is  an  indispensable  pre-requisite  to  the  is- 
suing of  the  writ,  and  this  can  regularly  appear  in  no  other  way 
than  by  his  own  indorsement  of  the  fact.  This,  then,  we  take  to 
be  the  established  law;  and  that  the  clerk  had  no  authority  to  is- 
sue the  writ  until  the  proper  affidavit,  with  the  requisite  indorse- 
ment, was  filed  with  him;  and  that  a  writ  issued  without  this  au- 
thority was  void  in  its  inception.  If  the  writ  was  issued  without 
authority  of  law,  it  was  not  in  the  power  of  the  court  to  correct  it. 
The  court  cannot,  by  permitting  officers  to  come  in,  pending  the 
suit,  and  perform  acls  which  the  law  says  are  pre-requisite  to  the 
issuing  of  the  writ,  give  those  acts  a  relation  back  to  the  com- 
mencement to  sustain  a  writ  irregularly  issued.  The  plaintiff 
must  make  his  case  perfect  in  the  beginning,  and  keep  it  so  in 
all  its  stages;  and  if  it  is  wrong  in  the  commencement,  no  subse- 
quent act  of  the  officers  or  of  the  court,  can  make  it  right. 

Third:  The  court  below  ought  to  have  sustained  the  motion 
to  dismiss.  In  all  other  proceedings  at  law,  the  statute  requires 
that  the  suit  shall  be  brought  in  the  county  where  the  defendant 
resides,  or  where  he  may  be  found.  Reason  and  analogy  would 
say,  that  a  suit  by  attachment  should  be  commenced  either  in  the 
county  where  the  defendant  resides,  or  where  his  property  may 
be  found.  We  admit  that  a  person  may  be  sued  by  attachment 
in  any  county  where  he  has  property,  because  it  is  through  his 
property  that  he  is  compelled  to  appear;  but  we  deny  that  it  may 
done  in  a  county  where  he  does  not  reside,  and  where  the  sheriff 
can  find  no  property  to  attach.  If  such  be  the  law,  it  may  be  used 
for  purposes  of  the  greatest  injustice  and  oppression.  But  if  this 
ground  was  not  sufficient,  and  the  record  presents  other  grounds 
which  ought  to  have  sustained  the  motion,  they  are  proper  subjects 
for  the  consideration  of  this  court.  This  court  said,  in  the  case 
of  Rowenvs.  Taylor,  decided  at  the  last  term,  that  although  a 
motion  docs  not  point  out  particular  irregularities,  yet  the  court 
may  notice  defects  apparent  on  the  record;  and  that  a  judgment 
may  be  arrested  for  an  objection  on  the  face  of  the  record,  although 
not  assigned  at  the  time  of  making  the  motion;  and  the  court  in 
that  case,  arrested  the  judgment  for  apparent  defects,  although 


REPORTS.  203 

(he  particular  reasons  assigned  by  the  defendant  below,  were  of 
matters  in  abatement.  This  I  understand  to  be  the  law,  and  that 
a  motion  to  dismiss  a  suit,  embraces  every  thing  that  ought  to 
dismiss  it,  and  that  appears  of  record.  The  court  will  consider 
in  this  case,  whether  at  the  time  of  making  the  motion,  there 
were  any  grounds  presented  in  the  record,  which  would  require 
that  the  suit  should  be  dismissed,  and  if  so,  the  judgment  must 
be  reversed. 

Fourlh:  The  decision  of  the  court  below  on  the  demurrer, 
seems  to  me  to  be  conclusive  of  the  case  in  this  court.  It  is  not 
denied  that  a  former  recovery  is  a  good  plea  in  bar  as  a  general 
principle.  No  objections  to  the  form  of  the  plea  have  been  taken. 
Two  grounds  have  been  assumed  here  in  support  of  the  demurrer; 
one  is,  that  a  court  of  chancery  cannot  render  a  judgment,  and 
that  a  recovery  in  chancery  cannot  be  pleaded  in  bar  in  an  action 
at  law;  the  other  is,  that  the  statute  authorizes  proceedings  in 
chancery  and  at  law  for  the  recovery  of  debts  secured  by  mortgage, 
as  concurrent  remedies,  and  that  in  the  chancery  suit  for  fore- 
closure, the  plaintiff  below  had  obtained  leave  to  proceed  at  law 
in  this  suit.  On  the  first  ground,  it  is  sufficient  to  remark,  that 
by  the  law,  Stat.  VVis.  290,  sec.  66;  2D2,  sec.  82,  a  decree  in 
chancery  has  the  same  force  and  effect  as  a  judgment  at  law;  and 
upon  the  coming  in  of  the  master's  report  on  the  foreclosure  of  a 
mortgage,  the  court  may  decree  the  balance  of  the  money  due, 
against  the  defendant,  and  issue  execution  thereon,  as  in  other 
cases.  The  recovery,  in  such  case,  is  full  and  complete,  and  exe- 
cution thereon  is  the  end  of  the  law. 

As  to  the  second  ground:  it  is  said  that  the  statute  authorizes 
concurrent  proceedings  at  law  and  in  chancery,  to  recover  the 
same  debt.  This  is  a  mistaken  idea  of  the  law.  The  statute  was 
evidently  intended  to,  and  actually  does,  restrict  the  powers  and 
limit  the  proceedings  of  mortgagees.  At  common  law,  the  mort- 
gagee had  the  right  to  pursue  his  remedies  at  law  and  in  chancery 
concurrently,  and  no  leave  of  the  chancellor  was  necessary;  our 
statute  provides,  that  after  a  bill  is  filed  to  foreclose,  no  proceed' 
ings  shall  be  had  at  law  to  recover  the  mortgage  debt,  unless  au- 
thorized by  the  court  of  chancery;  Stat.  VVis.  203,  sec.  §3.  We 
contend  that  the  authority  is  necessary  to  be  obtained  to  autho- 
rize the  very  commencement  of  the  proceedings  at  law.  If  the 
complainant  wishes  so  to  proceed,  after  filing  his  bill  to  forclose, 


204  REPORTS. 

he  should  file  his  petition,  or  supplemental  bill,  setting  up  the  ne-. 
cessity  and  propriety  of  so  proceeding,  and  obtain  the  authority  be- 
fore he  commences  at  law.  It  cannot  be  the  sound  construction  of 
the  statute,  that  a  party  mny  file  his  bill  to  foreclose,  afterwards  com- 
mence a  suit  at  law  to  recover  die  same  debt  in  violation  of  the 
provisions  of  the  statute,  prosecute  both  to  near  their  termination, 
and  then  obtain  an  cxpartc  order  in  the  chancery  suit  authorizing 
him  to  proceed  at  law,  and  that  this  order  will  relate  back  to  the 
commencement  of  the  action,  and  legalize  the  whole  proceeding. 
But  all  this  is  not  very  material  to  the  question.  The  decree  ren^ 
dered  at  the  coming  in  of  the  masters  report,  for  the  balance  of 
the  money  due  on  the  mortgage,  has  all  the  properties,  force,  and 
effect  of  a  judgment  at  law,  to  be  carried  into  effect  by  execution, 
as  in  other  cases,  and  of  course  must  be  a  bar  to  any  subsequent 
proceedings  to  recover  the  same  debt.  If  this  plea  in  bar  can  be 
obviated  by  the  previous  order  of  the  chancellor,  how  is  the  plain- 
tiff to  avail  himself  of  it?  By  demurrer?  Certainly  not;  for  on 
demurrer,  the  court  cannot  notice  any  thing  out  of  the  record  of 
the  particular  case  in  applying  the  law  to  it.  Counsel  say  that 
the  court  is  bound  to  notice  its  own  records.  This  is  true  in  all 
cases  where  they  can  be  legally  brought  to  notice,  but  the  court 
cannot  look  into  the  records  of  other  cases  for  fads  to  sustain  a 
demurrer;  for  this  would  be  making  an  issue  of  fact  instead  of 
law,  and  upon  such  an  anamolous  issue,  the  court  would  have  to 
try  the  fact.  The  law  is,  and  was  so  decided  here  in  the  case  of 
Hancy  vs.  Clark,  a  few  days  since,  that  this  court  cannot  notice 
any  thing  that  is  not  legitimately  a  part  of  (he  record  of  the  par- 
ticular case  under  consideration;  and  this  court  cannot  here  take 
any  notice  of  the  scrap  from  the  record  of  the  chancery  suit  which 
the  clerk  has  certified  and  sent  up.  If  the  plea  in  bar  is  to  be 
avoided  by  the  leave  obtained  in  chancery,  the  matter  should 
have  been  replied,  setting  up  the  authority,  which  would  have 
brought  the  sufficiency  of  the  order  in  issue.  The  plaintiff  be- 
low, having  failed  to  do  this,  and  relied  upon  his  demurrer,  and 
that  having  been  sustained  by  the  court,  the  judgment  must  for 
this  cause,  if  for  no  other,  be  reversed. 

Opinion  of  the  Court,  by  Judge  MILLER: 

This  suit  was  commenced  by  attachment  in  the  District  Court 
of  Iowa  county,  by  John  Bevans  against  William  B.  Slaughter. 
It  was  predicated  on  an  affidavit  of  plaintiff,  charging  the  defend- 


REPORTS.  205 

ant  with  fraudulently  disposing  of  his  property,  so  as  to  hinder  and 
delay  his  creditor.  The  affidavit  was  made  before  a  justice  of  the 
peace,  die  10th  day  of  September,  1839,  (before  the  act  in  the 
Kevised  Statutes  was  amended,)  and  the  justice  had  neglected 
to  indorse  his  satisfaction  thereon  previous  to  the  issuing  of  tho 
writ.  At  the  September  term  of  said  District  Court  for  the  year 
1810,  the  court  allowed  ihe  said  justice  to  appear  in  court  and 
make  the  necessary  indorsement  of  satisfaction  on  said  affidavit, 
nunc  pro  tune,  the  defendant  opposing  the  same.  In  pursuance 
of  the  tenth  section  of  said  act,  additional  writs  to  the  writ  issued 
to  the  sheriff  of  Iowa  county  were  issued  on  the  same  day  to  the 
sheriffs  of  Brown,  Grant,  Milwaukee,  Dane,  and  Racine  counties, 
and  on  which  property  was  attached  in  said  counties.  It  appeared 
by  the  motion  filed  to  dismiss  the  writ  and  proceedings,  that  the 
defendant  before  and  at  the  time  of  the  commencement  of  tho 
suit  resided  in  Dane  county.  The  court  overruled  trie  motion  to 
dismiss  the  writ  and  proceedings,  and  the  cause  proceeded  to 
final  judgment. 

The  first  error  assigned  for  our  consideration  is  as  follows: 

The  court  erred  in  recording  the  first  default  of  the  defendant 
before  proof  of  publication  filed. 

The  third  section  of  the  act  concerning  attachments,  directs 
the  clerk  who  issued  the  writ,  upon  the  return  of  the  writ,  to 
make  out  an  advertisement,  which  is  to  be  published  within  thirty 
days.  When  these  writs  were  returned,  does  not  appear.  The 
return  of  a  writ  is  presumed  to  have  been  on  the  return  day  men- 
tioned therein,  unless  the  date  of  the  return  specially  and  posi- 
tively appears,  by  indorsement  on  the  writ  itself,  or  entry  of  re- 
cord. By  the  seventh  section,  the  first  default  of  the  defendant  is 
to  be  entered  at  the  first  or  return  term,  which  could  not  be  done 
if  the  writ  had  not  been  returned  in  time  for  the  publication,  which 
may  not  have  been  issued  in  time,  or  if  so,  may  be  retained  in  the 
sheriff's  hands  until  the  return  day.  The  first  default  is  so  much 
a  matter  of  form,  that  the  entry  tiiercof  without  previous  publica- 
tion, or  proof  of  the  same,  is  not  error. 

The  second  error  assigned  is,  that  the  court  erred  in  permitting 
the  affidavit  to  be  amended.  There  was  no  amendment  made  of 
the  affidavit,  nor  could  there  be  any,  for  an  affidavit  of  this  kind  is 
not  amendable  under  any  circumstances.  The  error  assigned, 
from  the  argument,  we  are  to  infer,  has  a  rcfeiencc  to  the  pernws- 


206  REPORTS. 

sion  to  the  justice  to  indorse  his  satisfaction.  This  court  decided 
at  the  term  of  1840,  in  the  case  of  Mayhew  <$f  Dudley  vs.  May- 
hew,  that  the  satisfaction  of  the  officer  is  an  indispensable  pre-re- 
quisite;  and  that  can  regularly  appear  in  no  other  way  than  his 
own  indorsement  of  the  fact;  and  that  the  clerk  could  not  prop- 
erly and  legally  issue  the  writ  without  such  evidence  of  satisfac- 
tion. The  same  principle  was  reiterated  at  the  term  of  1841,  in 
the  case  of  Morrison  vs.  Fake.  And  the  legislature  was  so  well 
satisfied  of  the  propriety  of  this  rule,  that  in  the  act  to  amend  the 
act  concerning  the  writ  of  attachment,  approved  February  ICth, 
1842,  it  was  incorporated  therein.  From  this  it  will  appear  that 
the  indorsement  of  the  justice  should  not  have  been  allowed,  and 
that  the  District  Court  erred  therein. 

The  third  error  assigned  is,  that  the  court  erred  in  rendering 
final  judgment  before  two  defaults  of  the  defendant  had  been 
entered. 

At  the  September  term,  1840,  which  was  the  second  term,  the 
defendant  appeared  and  filed  a  motion  to  dismiss,  which,  at  the 
April  term,  1841,  was  overruled.  At  this  term,  the  defendant 
filed  his  plea  in  abatement,  which  was  disposed  of  against  him, 
when  the  defendant  filed  his  plea  of  general  issue,  and  a  plea  of 
former  recovery.  At  the  September  term  following,  the  cause, 
being  at  issue,  was  tried  by  a  jury.  This  statement  is  an  answer 
to  the  error  assigned.  The  defendant's  second  default  could  not 
have  been  legally  entered  in  the  face  of  his  plea. 

The  fourth  error  assigned:  That  the  court  erred  in  overruling 
the  motion  to  dismiss  the  attachment.  The  motion  was  made  at 
the  September  term,  1840,  on  the  ground  that  the  defendant  wns, 
at  the  time  of  the  commencement  of  the  suit,  and  continued  to  be, 
a  resident  of  Dane  county,  and  not  of  the  county  of  Jowa.  The 
process  of  attachment  is,  in  the  case  of  a  non-resident,  a  means  of 
compelling  a  party  to  appear  through  his  property.  It  is  not  regu- 
lated by  the  ger.erallaw  respecting  proceedings  in  courts,  but  it 
is  regulated  exclusively  by  the  act  upon  the  subject  of  attach- 
ments. That  act  does  not  confine  the  plaintiff,  in  his  suit,  to  the 
county  where  the  defendant  resides  or  is  found.  The  original  affi- 
davit filed  by  the  plaintiff  set  forth  that  the  defendant  had  property 
in  the  county  of  Iowa,  which  was  enough  to  authorize  the  writ 
in  that  county,  if  the  point  were  doubtful.  In  this  the  court  did 
not  err. 


REPORTS.  207 

The  fifth  error  assigned  is:  "That  the  court  erred  in  sustaining 
the  plaintiff's  demurrer  to  the  second  plea  of  the  defendant." 
The  said  second  plea  was  a  plea  of  former  recovery,  good  on  its 
face,  to  which  the  plainlifl'  demurred  generally.  This  court  is 
unanimously  of  opinion  that  there  was  error  in  this  decision;  and 
as  error  is  so  apparent,  it  is  not  necessary  to  refer  to  authority 
upon  (he  subject. 

These  embrace  all  the  errors  material  on  the  record.  It  is 
therefore  considered  and  adjudged,  that  the  judgment  of  the  Dis- 
trict Court  of  Iowa  county  be  reversed,  with  directions  to  said 
court  to  set  aside  the  writ  of  attachment  and  all  subsequent  pro- 
ceedings. 

MOSES  M.  STKONG  and  BURNETT,  for  pl'ff  in  error. 

JACKSON  and  DUNN,  for  deft  in  error. 


SATTERLEE  CLARK  and  ) 

HENRY  JONES,  pt-ffi  in  error,         t  £  ^ 

vs.  I 

FRANCIS  GILBERT,  deft  in  error,) 

AN  affidavit  for  an  attachment  under  the  law  of  1839,  charging  fraud, 
a*  the  affiant  verily  believes,  with  an  indorsement  of  the  officer  thereon  that 
he  is  satisfied  that  the  matters  therein  set  forth,  are  true,  is  sufficient. 

If  the  affidavit  is  in  proper  form  under  the  statute,  the  certificate  of  the 
officer  that  he  is  satisfied,  is  all  that  is  required. 

A.  plea  in  abatement  of  a  misnosmer  of  the  defendant  for  want  of  the  ad- 
dition of  "junior"  to  his  name,  may  be  regarded  as  a  sham  plea  and  treat- 
ed as  a  nullity. 

Gilbert  sued  out  a  writ  of  attachment  against  Clark  &  Jones 
in  the  Dane  District  Court,  on  the  17th  January,  1842,  upon  an 
affidavit  and  indorsement  of  satisfaction  thereon,  which  are  em- 
bodied in  the  opinion  of  ihe  court. 

At  the  October  term,  A.  D.  1842,  the  plaintiff  filed  a  declara- 
tion in  assumpsil,on  a  promissory  note  and  an  account;  and  the 
defendants  moved  the  court  to  quash  the  writ  and  dismiss  the 
proceedings  for  the  following  reasons: 


208  REPORTS. 

"  1.  The  affidavit  is  insufficient  in  this,  that  it  only  states  (he 
belief  of  the  defendant,  and  shows  no  fact  inproof  of  a  fraudulent 
intention  in  the  defendants,  to  dispose  of  their  property. 

2.  The  certificate  of  the   clerk  is   insufficient   in  this,  to  wit? 
that  it  does  not  certify  that  he  the  said  clerk,  is  satisfied  of  the  ex-1 
istence  of  either  of  the  causes  mentioned  in  the  statute  for  grant- 
ing a  writ  of  attachment. 

3.  The  affidavit  is  insufficient,  in  that  it  does  not  sufficiently 
Bet  forth  the  nature  of  the  indebtedness. 

4.  The  notice    of  the   attachment  was  not  published   for  six 
weeks  successively,  as  required  by  the  statute. 

5.  The  return  of  the  sheriff  is  insufficient,  in  that  it  does  not 
appear  that  he  attached  the  property  in  the  presence  of  two  free- 
holders of  the  county,  or  that  said  property  was   appraised  by  two 
freeholders  of  the  county." 

Publication  of  notice  of  the  attachment,  was  proven  by  the  ed- 
itor of  the  paper,  to  have  been  made  for  "  six  successive  weeks." 
The  District  Court  overruled  the  motion  to  quash,  and  the  de- 
fendant, Clark,  filed  a  plea  in  abatement  of  a  misnosmer  of  him- 
self, alledging  that  he  had  always  been  known  and  called  by  the 
name  of  "Satterlee  Clark,  junior,"  and  not  by  the  name  of  "Satter- 
lee  Clark."  The  plea  was  overruled  by  the  court,without  any  issue 
of  law  or  fact  upon  it;  and  at  the  same  term  judgment  by  default  was 
rendered  against  the  defendants  for  want  of  a  plea.  The  plaintilf, 
by  leave  of  the  court  withdrew  his  account,  and  the  clerk  assessed 
the  damages  upon  the  promissory  note  at  $296  08,  for  which  sum 
the  court  rendered  judgment:  to  reverse  which  judgment,  Clark 
and  Jones  have  prosecuted  this  writ  of  error. 
WIIITO:NJ  for  plaintiff's  in  error: 

We  contend  that  the  affidavit  is  not  sufficient,  and  that  the 
court  below  ought  to  have  sustained  the  motion  to  quash  the  writ. 
The  affidavit  states  neither  facts  nor  circumstances,  but  mere  be- 
lief. The  decisions  in  New  York  say,  that  proof  of  facts  and  cir- 
cumstances must  be  made,  and  that  belief  is  not  sufficient.  Vos- 
Jjurg  vs.  Welch,  1 1  John  Rep.  175;  Talman  vs.  Bigclow,  10 
Wendell,  4T-2.  Our  statute  requires  the  officer  to  be  satisfied  of 
facts,  and  the  court  should  examine  the  affidavit,  and  see  whether 
it  contains  matter  sufficient  legally  to  satisfy  him  that  the  facts 
existed,  and  if  it  docs  not,  the  writ  should  be  quashed;  see  the 
case  of  Morrison  vs.  Ream  decided  at  the  last  term  of  this  court. 


REPORTS.  209 

But  the  indorsement  of  the  officer  does  not  show  that  he  was  sat- 
isfied of  the  existence  of  any  fact  that  would  authorize  the  writ 
to  issue;  it  only  shows  that  he  was  satisfied  that  the  affiant  believ- 
ed the  facts.  Belief  itself  is  not  sufficient,  and  satisfaction  of  be- 
lief amounts  to  nothing.  The  affidavit  is  also  defective,  in  not 
stating  the  nature  and  amount  of  the  indebtedness. 

The  proof  of  the  publication  of  notice,  is  not  full  and  regular. 
The  statute  requires  the  proof  to  be  made  by  the  printer,  or 
his  foreman  or  principal  clerk.  Stat.  Wis.  247,  sec.  58.  The 
affidavit  of  the  editor  or  publisher,  is  not  the  proof  required. — • 
Again,  the  attachment  law  requires  the  notice  to  be  published  for 
six  weeks  successively,  and  this  proof  establishes  the  publication 
for  six  successive  weeks.  This  is  not  a  compliance  with  the  Statute. 
Sec  Anon.  1  Wendell,  90.  The  first  publication  may  have  been 
on  Saturday  and  the  last  on  Monday,  and  there  may  have  been 
six  successive  weeks  of  the  publication,  and  still  it  may  not  have 
continued  for  the  period  of  six  weeks. 

FIELD,  for  defendant  in  error: 

This  court  cannot  examine  any  thing  that  is  not  properly  a  part 
of  the  record.  The  affidavit  is  no  part  of  the  record,  unless  made 
so  by  a  bill  of  exceptions,  and  this  court  cannot  notice  it.  1  Hen. 
&  Mun.  375.  A  bond,  unless  set  out  on  oycr,  and  affidavit  for 
continuance,  or  to  hold  to  bail,  or  fur  any  other  purpose,  or  proof 
of  the  publication  of  notice,  forms  no  part  of  the  record,  unless 
embraced  in  a  bill  of  exceptions;  3  Peters1  Dig.  4-10,  411;  1 
Scammon,233;  5  Peters,  218;  4  Hen.  fc  Mun.  159. 

But  however  this  point  may  be  considered,  the  affidavit  will  be 
found,  upon  examination,  to  comply  fully  with  the  requisitions  of 
the  statute  of  1839,  under  which  the  writ  was  issued.  According 
to  the  decision  of  this  court,  in  the  case  of  Morrison  vs.  Fake,  in 
1841,  a  substantial  compliance  with  the  statute,  was  sufficient. 

MOSES  M.  STHONG,  in  reply: 

The  counsel  for  the  defendant  in  error  contend.-;,  that  because 
the  affidavit  is  not  made  part  of  the  record  by  a  bill  of  exceptions, 
its  sufficiency  cannot  be  inquired  into  here.  To  establish  this 
principle,  will  be  to  overrule  the  whole  current  of  the  decisions 
of  this  court  upon  similar  questions.  In  the  case  of  Doty  vs. 
Strong,  decided  in  1S39,  an  affidavit  for  a  continuance  was  filed 
in  the  court  below,  and  the  motion  to  continue  was  overruled. — 
No  bill  of  exceptions  was  taken,  but  this  court  reversed  the  judg- 

27 


210  KEPOKTS. 

ment  for  error  in  refusing  to  continue  the  cause.  The  court  also" 
decided  upon  matters  not  made  part  of  the  record  hy  bills  of  ex- 
ceptions, in  the  case  of  Morrison  vs.  Fate,  in  184] ;  and  in  the 
cases  of  Rou-en  vs.  Taylor,  and  Morrison  vs.  Ream,  in  1S42. — 
But  the  affidavit  for  an  attachment  is  legitimately  a  part  of  the 
record,  and  docs  not  require  a  bill  of  exceptions  to  make  it  so.  It 
is  the  very  foundation  of  the  whole  proceeding.  If  an  attachment 
case  were  brought  into  this  court,  and  the  record  did  not  show 
that  any  affidavit  had  been  filed  to  authorize  the  issuing  of  the 
•writ,  would  the  court  not  reverse  any  judgment  that  had  been're- 
covered  in  the  case?  If  so.  the  same  decision  must  be  given  up- 
on a  defective  affidavit. 

Both  the  affidavit  and  the  satisfaction  indorsed,  are,  as  we  con- 
lend,  defective.  The  affidavit  is  only  of  the  belief  of  the  affiant, 
and  the  satisfaction  is  only  of  the  belief,  and  not  of  any  fact. — 
Neither  is  a  compliance  with  the  law;  and  in  this  view  I  think  we 
are  sustained  by  the  decisions  in  the  cases  of  Mayhew £f  Dudley 
vs.  Mayhew ;  Merrill  cs.  Low,  and  Morrison  vs.  Ream.  Test 
the  affidavit  by  considering,  whether  Bruce,  the  affiant,  could  be 
indicted  and  convicted  of  perjury  if  it  is  false?  It  appears  to  me 
that  no  such  indictment  could  be  sustained.  An  affidavit  that 
could  not,  in  any  possible  state  of  facts,  support  a  prosecution  for 
perjury,  cannot  be  sufficient  for  any  legal  purposes.  The  very 
fact  of  there  being  a  difference  of  opinion  upon  the  affidavit, is  suffi- 
cient to  set  it  aside;  for,  as  this  court  said  in  Merrill  vs.  Low,  the 
affidavit  should  be  so  certain  as  to  leave  no  doubt  or  difference  of 
opinion. 

The  court  below  ought  to  have  required  an  issue,  either  by  de- 
murrer or  replication, on  the  plea  in  abatement.  If  the  plea  was 
bad, the  defendants  should  have  had  leave  to  plead  over;  and  it  was 
error  in  the  court  to  dispose  of  the  plea  in  a  summary  way.  and  give 
judgment  in  chief  against  the  defendants.  See  the  case  of  Arndt 
rs.Allard,  decided  at  the  August  term,  1840. 
Opinion  of  the  Court,  by  Judge  MILLER: 
The  plaintiffs  in  error  were  defendants  in  an  action  of  assump- 
sit  commenced  by  the  defendant  in  error  in  the  District  Court  of 
Dane  county,  by  attachment.  The  affidavit  for  the  attachment 
•was  made  before  the  clerk  of  the  said  court,  before  the  attach- 
ment law  was  amended,  and  is  as  follows:  "  William  II.  Bruce, 
agent  of  Francis  Gilbert,  being  duly  sworn,  doth  depose  and  say, 


REPORTS.  21 1 

that  Sattcrlee  Clark  and  Henry  Jones,  by  the  name  of  Clark  &- 
Jones,  are  justly  indebted  to  the  said  Gilbert,  in  the  sum  of  three 
hundred  and  five  dollars  and  fifty  cents,  on  a  note  of  hand  and 
balance  of  account,  and  that  he  verily  believes,  that  saici  Clark 
&.  Jones  are  about  fraudulently  to  dispose  of  their  property,  so 
as  to  hinder  their  creditor,  the  said  Gilbert:""  On  which  the  clerk 
make  Ibis  indorsement:  "  The  above  affidavit,  being  subscribed 
and  sworn  to,  is  to  me  satisfactory  evidence  that  the  matters  there- 
in set  forth  are  true." 

A  motion  was  made  in  the  District  Court  on  the  part  of  the 
defendants,  to  quash  the  writ  for  insufficiency  of  the  affidavit,  and 
also  of  the  indorsement  of  satisfaction  by  the  clerk.  The  mo- 
tion was  overruled,  and  this  forms  the  assignment  of  errors  in  this 
court. 

An  inspection  of  the  paper,  is  sufficient  to  satisfy  the  court  that 
the  District  Court  did  not  err.  The  affidavit  is  complete,  accord- 
ing to  the  form,  under  tho  statute  before  the  amendment.  The 
certificate  of  the  officer  is  all  that  is  required.  We  understand 
by  it  that  the  officer  was  satisfied  that  the  defendants  were  about 
fraudulently  to  dispose  of  their  property,  so  as  to  hinder  their  cre- 
ditor, the  plaintiff. 

On  the  26th  day  of  July,  which  was  the  ninth  day  of  this  term, 
the  plaintiff  in  error  filed,  as  an  additional  error,  that  the  court 
erred  in  overruling  the  plea  in  abatement,  no  issue  of  law  or  of 
fact  having  been  made  upon  it.  This  plea  in  abatement,  is  on  the 
alledged  ground  that  Satterlee  Clark  is  known  as  Satterlce  Clark, 
junior,  and  is  not  so  styled  in  the  record,  &c.  The  rules  of  court 
require  the  assignment  of  errors  to  be  filed  on  the  first  day  of  the 
term,  and  the  court  are  under  no  obligations  to  notice  any  filed  af- 
terwards. The  court  will  notice  an  error  apparent  on  the  record 
when  necessary,  for  the  sake  of  justice;  but  this  appears  too  tri- 
vial to  require  this  attention  from  us.  And  afier  a  motion  was 
filed  by  defendants  to  dismiss  for  reasons  filed,  the  court,  no  doubt, 
considered  this  plea  as  scarcely  deserving  more  than  a  mere  pass- 
ing notice,  and  no  doubt  treated  it  as  a  sham  pica. 

Judgment  affirmed  with  costs. 

WHITOX,  MOSES  M.  STRONG,  and  ABBOTT,  for  plaintiffs  in  error. 

FIELD  &-  BOTKIN,  for  defendant  in  error. 


212  REPORTS. 


HA  MILTON  STEVENS,  ppff  in  error, ) 

rs.  >  Error  to  Jefferson  county. 

C.  J.  COON,  deft  in  error,  ] 

A  CONTRACT  in  writing,  as  follows:  "In  consideration  of  A.  B.  entering 
the  west  half  of  the  north-east  quarter  of  section  35,  in  town  13,  ran<;e  13, 
I  bind  myself  that  the  said  eighty  acres  of  land  shall  sell  on  or  before  the 
3st  October  next  for  two  hundred  dollars  or  more,  and  the  said  A.  B.  agrees 
to  give  me  one-half  of  the  amount  over  two  hundred  dollars  said  land  may 
sell  for,  in  consideration  of  rny  warranty.  C.  D."  "I  a^rec'to  the  abovo 
contract,  A.  B;"  is  void,  because  it  binds  the  warrantor  to  the  perform- 
ance of  a  legal  impossibility. 

If  the  contract  had  been  that  the  land  would  be  worth  two  hundred  dol 
lars  by  a  given  day,  a  recovery  might  be  had  upon  it,  if  the  land  did  not 
rise  in  value  to  that  sum. 

Coon  brought  an  action  of  assuinpsit  against  Stevens  in  the 
Jefferson  District  Court  upon  a  written  contract,  by  which  Stevens 
bound  himself  that  a  certain  half  quarter  section  of  land  which 
Coon  was  about  to  enter,  should  sell  by  a  given  day  for  S'200,  or 
more,  and  Coon  agreed  to  give  Stevens  one-half  of  all  the  land 
should  sell  for  over  $'200. 

On  the  trial  in  the  court  below,  Coon,  the  plaintiff,  proved  the 
entry  of  the  land,  and  introduced  evidence  to  prove  that  the  land, 
at  the  time  specified  in  the  contract,  was  worth  about  §1  25  per 
acre. 

Upon  this  testimony,  the  defendant  moved  the  Court  to  instruct 
the  jury  as  in  case  of  a  non-suit,  for  the  following  reasons: 

"1.  Because  the  said  supposed  contract  was  a  nudum  pactum, 
by  which  the  defendant  received  no  benefit,  and  the  plaintiff  no 
injury. 

2.  Because  the  supposed  contract  assumes  to  bind  the  defend- 
ant to  perform  an  impossibility. 

3.  Because  said  writing  discloses  a  gambling  contract,  if  any."' 
The  Court  overruled  the  motion  and  refused  the  instruction 

asked  for,  and  the  jury  returned  a  vrrdict  in  favor  of  the  plaintiff 
for  §110  50;  upon  which  the  Court  rendered  judgment.  To  re- 
verse tliis,  Stevens  lias  prosecuted  this  writ  of  error. 

BRIGHAM,  for  pl'll'm  error,  declined  opening  the  argument. 

WJIITON,  for  deft  in  error: 

The   contract   upon  which  this  suit  is  brought,  is  said  to  be  a 


REPORTS  213 

nudum  pactum.  Such  cannot  be  the  construction  given  to  the 
writing;  it  is  a  fair  agreement  that  might  result  in  benefit  to  one 
or  the  other  of  the  parties. 

It  is  also  alledged  that  the  performance  of  the  contract  is  im- 
possible. This  is  a  mistake.  It  is  not  only  possible  but  proba- 
ble. 

Again,  it  is  said  that  it  is  a  gambling  contract,  and  as  such,  can- 
not be  recovered  upon  at  law.  This  is  obviously  not  the  case. — 
Stevens  knew  the  country  and  was  acquainted  with  the  land,  but 
had  not  money  to  enter  it:  Coon  had  money,  but  knew  nothing  of 
the  land,  and  upon  Stevens'  representations,  agreed  to  enter  it 
and  give  him  one-half  of  all  it  would  sell  forever  $200,  in  a  given 
time,  and  Stevens  bound  himself  that  it  should  sell  for  that  sum  or 
more  by  the  time  specified.  This  was  a  perfectly  fair  arrange- 
ment, and  neither  gambling  nor  against  public  policy;  and  was  one 
that  might  have  resulted  to  the  mutual  benefit  of  both  the  parties. 

BRIGHAM,  in  reply: 

The  motion  for  a  non-suit  in  this  case,  was  in  effect,  a  demurrer 
to  the  evidence,  and  submitted  the  question  of  law  to  the  Court, 
whether,  upon  the  testimony,  the  plaintiff  could  recover.  If  the 
Court  decided  improperly  in  overruling  the  motion,  it  was  error. 
4  Call,  17. 

The  contract  itself  is  a  gambling  contract,  and  against  the  poli- 
cy of  the  law,  and  as  such,  a  recovery  cannot  be  had  upon  it.  2 
Mass.  Rep.  6.  3  Pick.  419. 

The  contract  is  void,because  it  bound  Stevens  to  the  performance 
ofanimpossibility.  When  Coon  entered  the  land, no  one  but  himself 
had  any  control  over  the  sale  of  it.  It  is  immaterial  how  high  the 
land  might  have  risen  in  value, if  Coon  did  not  choose  to  sell, Stevens 
had  no  power  to  compel  him  to  do  so  for  $200,  or  any  sum  over. 
A  legal  impossibility  of  this  kind  is  not  binding  on  a  party,  even 
if  he  has  entered  into  a  contract  for  the  performance.  Coke  on 
Lit.  200.  Pothieron  Obligations,  71.  2  Saund.  Ilcp.  137,  d. — 
6  Petersdorff's  Ab.  218. 

Opinion  of  the  Court,  by  Chief  Justice  Duxx: 

Error  is  brought  in  this  case  to  reverse  a  judgment  of  the  Dis- 
trict Court  of  Jeflerson  county. 

Coon,  plaintiff  below,  brought  his  action  of  assumpsit  against 
Stevens,  defendant  below,  to  recover  damages  on  a  liability  grow- 
ing out  of  a  contract,  which  is  in  the  words,  tfcc.,  following,  viz: 


214  REPORTS. 

•'Astor,  March  23d,  1839.  In  consideration  of  C.  J.  Coon  en- 
tering the  west  half  of  the  north  west  quarter  of  section  35,  in 
town  13,  range  13, 1  bind  myself  that  the  said  eighty  acres  of  land 
shall  sell, on  or  before  the  1st  October  next,  for  two  hundred  dol- 
lars or  more,  and  the  said  Coon  agrees  to  give  me  one  half  of  the 
amount  over  two  hundred  dollars  said  land  may  sell  for  in  consi- 
deration of  my  warranty.  HAMILTON  STEVENS." 

"I  agree  to  the  above  contract,  C.  J.  COON." 

"JOHN  S.  HORNER." 

At  the  August  term  of  the  said  Jefferson  District  Court,  in  the 
year  1840,  the  said  defendant  Stevens  pleaded  the  general  issue 
which  was  joined  by  the  srid  plaintiff  Coon,  and  after  several  con- 
tinuances, the  case  was  tried  at  the  October  term.  1842.  On  the 
trial,  the  above  contract,  and  the  Receiver's  receipt  to  said  plain- 
tiff Coon,  for  the  purchase  money  for  said  tract  of  land  described, 
in  said  contract,  were  read  in  evidence  to  the  jury;  and  Abraham 
Vanderpool,  a  witness  testified;  "  that  he  had  visited  that  parlor 
the  country  where  the  land  lies  specified  in  said  writing,  and  was 
upon  the  same,  as  he  has  no  doubt,  and  estimated  the  present 
value  of  the  same  at  one  dollar  and  fifty  cen's  per  acre,  and  that 
in  October,  1839,  it  might  be  worth  one  dollar  and  twenty-five 
cents  an  acre."  Upon  this  evidence  and  testimony  the  plaintiff 
rested  his  case. 

In  view  of  the  conslruction  put  on  the  contract  read  in  evi- 
dence, the  jury  found  for  the  plaintiff  $110  50  in  damages,  and 
judgment  was  entered  thereon.  There  is  manifest  error  in  this  de- 
cision of  the  court.  From  an  inspection  of  the  contract,  it  is  ob- 
vious that  it  is  not  such  an  one  as  is  obligatory  on  either  party. — 
There  is  no  reciprocity  of  benefit,  and  it  binds  the  defendant  be- 
low to  the  performance  of  a  legal  impossibility,  so  palpable  to  the 
contracting  parties,  that  it  could  not  have  boen  seriously  intend- 
ed by  the  parties  as  obligatory  on  either.  The  undertaking  of 
the  defendant  below  is,  "  that  plaintiff's  tract  of  land  shall  sell 
for  a  certain  sum  by  a  given  day."  Is  it  not  legally  impossible  for 
him  to  perform  this  undertaking?  Certainly.  No  man  can,  in 
legal  contemplation,  force  the  sale  of  another's  property  by  a  giv- 
en day,  or  by  any  day,  as  of  his  own  act.  The  plaintiff  was  well 
apprized  of  the  deficiency  of  his  contract  on  the  trial,  as  the  tes- 
timony of  his  witness  was  entirely  apart  from  the  contract  sued 
on,  and  set  up  a  new  contract  and  such  an  one  as  the  law  would 


REPORTS.  215 

have  recognized.  If  the  contract  had  been  that  the  tract  of  land 
\vould  be  worth  two  hundred  dollars  by  a  given  day,  then  it  could 
have  been  recovered  on,  if  it  did  not  rise  to  that  value  in  the  lime. 

1  Cumyn  on  Contracts,  14,  Jt>,  18;  1  Comyn's  Dig.  Title,  Agree- 
ment;  1  Potliier  on  Obligations,  71 ;  G  Petersdorf 's  Abridg.  218; 

2  S;uid.  137  (d.)     The  District  Court  could   not   have  entered 
judgment  on  the  finding  of  the  jury  in  this  case.     The  construc- 
tion of  the  contract  [>y  the  District  Court,  was  erroneous. 

Judgment  reversed  with  costs. 
BUIGHAM,  for  plaintiff  in  error. 
WHIT  ON,  for  defendant  in  error. 


THE  UNITED  STATES,  ex  relation. 
THOMAS  A.  13. 13OYD,     j 

vs.  >  In  quo  ivarranlo. 

JAMES  H.  LOCKWOOD,\ 

A  JUDGE  of  the  Court  cannot  award  a  writ  of  quo  warranlo,  in  vacation. 

Pr  'cecclings  in  quo  warranto^  may  be  maintained  against  a  Judge  of 
Probate. 

Proceedings  in  quo  warranlo  must  be  at  the  instance  of  the  Government, 
acting  by  the  proper  officer;  they  cannot  be  maintained  at  the  instance  of 
a  private  person. 

The  proper  course  of  proceeding  in  the  commencement,  is  to  lay  a  pro- 
per ca?e  before  the  Court  at  the  instance  of  the  proper  law  officer,  verified 
by  affidavit,  upon  which  the  Court  will  grant  a  rule  to  show  cause  why  an 
information  should  not  be  filed ;  if  the  cause  shown  is  not  such  as  pu:s  the 
matter  beyond  dispute,  the  rule  will  be  made  absolute  for  the  information, 
in  order  that  the  question  concerning  the  right  may  be  properly  determined. 

On  the  1st  July,  1843,  Boyd,  the  relator,  presented  to  the 
Chief  Justice,  in  vacation,  a  relation  and  affidavit  setting  forth, 
that  he,  the  rdator,  was  duly  elected  to  the  office  of  Judge  of 
Probate  of  Crawford  county,  at  the  election  held  on  (he  first  Mon- 
day in  May,  1843,  by  a  majority  of  ihe  legal  votes  cast  at  the  said 
election;  that  the  certificate  of  election  to  the  s:iid  office  ought  to 
have  been  given  to  the  relator,  but  that  it  was  given  to  James  H. 
Lockwood,  who  had  from  that  time  since  usurped  the  said  office 
against  the  right  of  the  relator,  and  concluded  with  a  prayer  of 


"210  UEPOIITH. 

process,  &c.  Upon  the  affidavit,  the  Chief  Justice  made  an  or- 
der on  the  1st  July,  to  the  clerk  of  the  Supreme  Court  to  issue  a 
\viit  of  quo  u'ftrranto  in  the  case  related.  The  writ  was  issued 
on  the  3d  July,  directed  to  the  shcrilFof  Crawford  county,  and  was 
served,  and  returned  to  this  court. 

The  proceedings  were  commenced  and  prosecuted  by  BEN  C. 
EAST  MAX,  attorney  for  the  rclator. 

On  the  second  day  of  the  term,  the  rclatovby  his  counsel  moved 
the  Court  for  a  rule  against  the  respondent  to  plead  to  the  rela- 
tion, and  on  the  fifth  day  a  rule  was  ordered  requiring  the  respon- 
dent to  plead  on  or  before  the  eighth  day  of  the  term.  Under 
this  rule  the  respondent  moved  the  Court  to  c!ijmij3  tho  proceed- 
ings, because — 1.  The  process  and  proceedings  are  not  authorized 
by  law;  2.  The  said  process  and  proceedings  arc  not  instituted 
and  conducted  by  any  person  authorized  by  lav/  10  institute  and 
conduct  the  same, 

BURNKTT,  for  respondent,  and  in  support  of  the  motion: 

The  process  in  this  case  was  not  properly  awarded,  and  is  with- 
out authority  of  law.  The  only  authority  which  the  legislature 
has  given  upon  the  subject,  is  contained  in  tho  judiciary  act; 
Stat.  Wis.  190.  The  second  section  says  that  the  Supreme  Court 
shall  have  power  to  issue  writs  of  mandamus,  quo  icarranto,  «Lc. 
This  power  is  vested  in  the  court,  and  not  in  the  judges  separate- 
ly, to  be  exercised  in  vacation.  The  award  of  the  writ  in  this 
case,  made  by  one  of  the  judges  at  chambers,  is  not  within  the 
authority  given  by  the  statute.  The  statute  confers  a  naked  au- 
thority on  the  court  to  issue  the  writ,  and  makes  no  provision  for 
the  subsequent  proceedings;  and  we  are  left  to  the  original  writ 
of  quo  u-arranto,  to  be  carried  into  effect  as  at  common  law.  The 
writ  of  quo  warrunto,  is  in  the  nature  of  a  writ  of  right  for  the 
government,  to  sei/.e  the  oflicc  or  franchise  into  the  hands  of  the 

o  J 

government;  2  Wheaton's Sclwyn,  3:22;  Buller's  i\.  P.  210,  211, 
212;  7  Cornyn's  Dig.  Title  Quo  Warranto,  A.  And  at  common 
law  there  is  no  rclator;  2  Wheat.  Sel.  3;^{,  note  -1.  This  writ, 
then,  having  been  awarded  by  a  judge  in  vacation,  and  not  by  the 
court,  and  being  upon  the  relation  of  Thomas  A.  ]J.  Boyd,  has 
Lcen  commenced  without  authority  of  law,  and  should  be  dis- 
missed. 

The  proceedings  are  not  instituted  or  conducted  upon  the  proper 
authority.  They  wurc  commenced  upon  the  relation  of  a  private 


UKPOUTS.  21? 

individual,  nnd  arc  prosecuted  by  liis  attorney,  as  any  civil  pro- 
ceeding. It  is  aii  established  principle  that  proceedings  in  quo 
warranto  must  be  instituted  by  the  government  and  prosecuted 
by  the  Attorney  General.  2  Wheat.  8  •!.  ;>~.J,  i:  W~<t!l;icc  ?•.?. 
Anderson,  5  Wheat.  -2'M;  C/'cari/  vs.  1),  //<'v.vr;V,-;r,  1  McCurd,  :,:.~>. 
The  practice  in  JN'ew  York  shows  that  all  proceedings  of  iii::  ki,id 
are  instituted  by  the  government  and  prosecuted!)1/  'h  •  Attorney 
General,-  The  People  vs.  Rlchanhnn,  4  Cowcn,  'j/.  and  note  100 
— 123.  In  Wallace  vs.  Anderson,  the  Supreme  Court  of  the 
United  States  expressly  decided,  that  proceedings  in  f/«o  u-arrun- 
lo  to  try  the  right  to  an  office,  cannot  in  any  case  be  maintained 
except  at  the  instance  of  the  government;  and  if  instituted  by  a 
private  individual  without  the  authority  of  the  government,  they 
cannot  be  sustained,  whatever  the  rights  of  the  parlies  may  be. 

EASTMAN,  forrelator: 

The  authority  given  in  tiic  statute  to  grant  writs  of  quo  u-ar- 
ranto,  &-c.,  does  not  apply  to  the  coti'.l  a!oi!o.  but  e,m!)raccs,  in 
cfiect,  the  judges  of  the  court.  Th?  third  sec! ion  of  the  act 
that  has  been  referred  to,  gives  the  judges  in  vacation,  the  pow- 
er toallow  writs  of  error,  certiorari,  su  nurse  do  as  and  inj'.mciion; 
and  also  by  tiie  same  section,  the  court  is  vested  with  all  power 
and  authority  necessary  forcarrhig  into  completf  cxi  cation  all  its 
judgments,  decrees,  determinations,  &,c.:  and  for  liie  exercise  of 
its  jurisdiction  agreeably  to  the  usages  and  principles  of  lav/. — 
The  meaning  of  the  statute  is  the  same  in  relation  to  all  th::.su  ne- 
cessary powers;  and  where  it  is  necessary  to  the  ends  of  justice, 
to  award  a  writ  in  vacation  to  carry  into  ( ii'oct  any  of  the  powers 
of  the  court,  the  judge  imy  grant  it.  This  construction  will  har- 
monize all  the  powers  of  the  court,  and  eilect  the  objects  tint 
were  intended  by  the  legislature. 

Formerly,  a  quo  warrants  was  regarded  as  a  criminal  pro- 
ceeding, in  which  the  usurper  was  punished  by  line,  and  had  to 
be  instituted  by  the  crown.  In  modem  times,  it  is  considered  as 
a  mere  civil  proceeding  to  try  the  right  to  an  oilier,  ;i  Wheat. 
Sel.  346;  4  T.R.  SO'J;  2  T.  R.  i?l;  ~2  Tula's  IVac.  .s:}?,  '.).— 
It  being  in  the  nature  of  a  civil  suit  to  try  tii;;  rights  of  the  parties 
it  is  not  necessary  that  it  should  be  prosecuted  by  tiic  Attorney 
General.  The  case  of  3[cCIcrnand  r.s\  Field,  in  3  Scammon,  is 
one  in  point,  and  shows  th  ;t  in  tiie  Si:prr,Ti  -'  ( 'o'.irt  of  llhiio.s,  the 
principle  is  recognized  of  trying  the  rigiit  to  r.n  ofiicc  on  quoir.'ir- 


218  REPORTS. 

ranto,  at  the  instance  of  the  party,  without  any  connection  with  the 
law-officer  of  the  government. 

BURNETT,  in  reply: 

The  very  distinctions  that  have  been  pointed  out  in  the  statute, 
show  a  different  intention  in  the  legisfaluie  than  the  one  contend- 
ed for.  Where  a  general  power  is  given  to  the  court  for  a  variety 
of  different  objects,  and  in  some  of  the  cases,  the  power  is  given 
to  the  judge  to  act  in  vacation,  it  excludes  the  idea  that  he  can 
do  so  in  the  others. 

The  English  authorities  that  have  been  read,  are  founded  upon 
the  different  acts  of  parliament,  and  are  not  based  upon  the  com- 
mon law.  The  British  statutes  never  were  in  force  in  this  Ter- 
ritory, and  the  decisions  upon  them,  can  have  no  authority  in  this 
case. 

The  case  of  JtcClernand  vs.  Field,  was  an  agreed  case,  in 
which  every  matter  of  form  was  waived,  and  the  right  to  the  office, 
only,  submitted  to  the  court.  The  report  of  the  case  shows  noth- 
ing of  the  forms  pursued,  and  it  cannot  be  relied  upon  as  govern- 
ing the  case  before  the  court. 

Opinion  of  the  Court, by  Chief  Justice  DUNN: 

The  respondent, by  his  attorney  has  submitted  a  motion  in  this 
case  to  dismiss,  in  response  to  a  rule  to  plead.  The  reasons  in 
support  of  the  motion, are:  1st.  The  process  nnd  proceedings  herein 
are  not  authorized  by  law.  2nd.  The  said  process  and  proceed- 
ings are  not  instituted  and  conducted  by  any  person  authorized  by 
law  to  institute  and  conduct  the  same. 

This  is  the  first  proceeding  of  the  kind  that  has  been  attempt- 
ed in  this  court.  There  is  no  law  of  the  Territory  defining  the 
form  of  proceeding  in  such  informations.  The  second  section  of 
the  "  act  concerning  the  Supreme  aad  District  Courts,"  vesis  in 
this  court  the  power  of  issuing  writs  of  mandamus,  quo  warranto, 
&c.  And  the  third  section  vests  in  it,  "  all  power  and  authority 
necessary  for  the  exercise  of  its  jurisdiction  as  the  supreme  judi- 
cial tribunal  of  the  Territory,  agreeably  to  the  usages  and  princi- 
ples of  law."  In  the  exercise  of  our  jurisdiction  over  informa- 
tions in  the  nature  of  quo  warranto,  we  must  be  L'ovomed  by  the 
"usages  and  principles  of  law,"  and  it  is  of  the  utmost  importance 
that  they  should  be  correctly  understood  and  defined,  step  by  step, 
as  we  proceed. 

The  rule  is  now  settled,  that  an  information  in  the   nature  of 


REPORTS.  219 

quo  warranto,  will  lie,  to  inquire  by  what  authority  any  one  exer- 
cises any  particular  office  or  jurisdiction,  in  which  the  public  are 
concerned.  An  office  is  where,  for  the  time  being,  a  portion  of 
the  sovereignty,  legislative,  executive,  or  judicial  attaches,  to  be 
exercised  for  the  public  benefit.  That  the  Court  of  Probate  of 
Crawford  county,  is  an  office  within  this  definition,  there  can  be 
no  question;  and  that  the  proceeding  by  information  in  the  nature 
of  quo  warranto  may  be  had  against  the  incumoent  judge,  is  equal- 
ly free  from  doubt. 

The  case  of  Wallace  vs.  Anderson,  5  Wheaton,  291,  settles 
this  principle  :  "  that  a  writ  of  quo  warranto  cannot  be  maintained, 
except  at  the  instance  of  the  government,  whatever  might  be  the 
right  of  the  prosecutor,  or  person  claiming  to  exercise  the  office 
in  question:  "  Ii  does  not  appear,  affirmatively,  that  the  proceed- 
ing in  this  case,  is  at  the  instance  of  the  government.  It  is  true, 
that  the  style  of  the  relation  is;  "  The  United  States  on  the  rela- 
tion of  Thomas  A.  B.  Boyd  vs.  James  H.  LockwooJ."  The  At- 
torney General,  or  other  public  prosecutor,  is  not  identified  with 
the  relation.  It  might  be  conceded  that  the  Attorney  General 
could  not  withhold  his  name  or  sanction, it  being  now  recognized  as 
a  civil  proceeding,  to  settle  the  relative  claims  of  individuals  to  an 
office.  Be  this  as  it  may,  it  should  appear  in  ilie  proceedings,  to 
be  at  the  instance  of  the  government,  acting  by  its  proper  of- 
ficer. 

The  Supreme  Court  is  vested  with  the  power  to  issue  the  writ 
of  quo  wnrranto,  &c.  One  of  the  judges  thereof  cannot,  in  va- 
cation, issue  or  order  the  issuing  of  the  writ. 

At  the  instance  of  the  government,  by  its  proper  officer,  on  the 
relation  of  Thomas  A.  B.  Boyd,  presenting  a  proper  case  verified 
by  affidavit,  this  court  could  not  hesitate  to  take  the  proper  ac- 
tion. 

The  method  of  proceeding  is  to  lay  a  proper  case  before  the 
court,  verified  by  affidavit,  upon  which  the  court  will  grant  arule 
to  the  party,  to  show  cause  why  an  information  should  not  be  filed 
against  him;  and  unless  the  cause  shown  by  him,  bo  such  as 
puts  the  matter  beyond  dispute,  the  court  will  make  the  rule  ab- 
solute for  the  information,  in  order  that  the  question  concerning 
the  right  may  be  properly  determined.  Bullcr's  Nisi  Prius,  210, 
11,  12. 

We  have  thought  it  necessary  in  disposing  of  this  motion  against 


220  REPORTS. 

the  relator,  to  indicate  what  is  viewed  to  be  correct  practice  under 
the  law  applicable  to  proceedings  of  this  nature,  in  their  inception, 
that  he  may  present  his  oOse  through  the  proper  channel  and  with 
regularity. 

The  order  made  by  one  of  the  members  of  this  court  at  cham- 
bers, for  a  writ,  was  not  made  with  confidence  at  the  time,  of  its 
propriety:  Subsequent  full  examination  has  satisfied  that  member 
of  the  court,  that  the  order  was  irregular. 

The  motion  to  dismiss  is  sustained  and  the  proceedings  dis- 
missed with  costs. 

EASTMAN,  for  relator. 

BURNETT,  for  respondent. 


CHARLES  BRACKEN ,  plaintiff  in  error,  ) 

is.  >  Error  to  Toua  counti/. 

SYLVESTER  B.  PRESTON,  et  al.  defHs  in  error,  \ 

JUSTICES  of  the  Peace  are  not  bound  to  examine  jurors  under  oath  as  to 
their  qualifications,  as  the  authority  to  do  so  is  not  given  them  by  statute. 

In  proceedings  iu  forcible  entry  and  detainer,  the  complainant  must  set 
forth  his  title  so  far  as  to  show  himself  within  the  provisions  of  the  statute, 
and  that  title  may  be  controverted  by  the  defendant,  but  the  defendant 
cannot  set  up  title  in  himself  in  defence;  the  title  to  the  premises,  as  be- 
tween tlie  complainant  and  defendant,  cannot  be  inquired  into  :  The  com- 
plainant must  set  forth  a  seizin  or  possession  in  himself  within  the  provisr 
ions  of  the  act,  and  whether  his  estate  is  free-hold  or  a  term  of  years,  and 
upon  the  traverse,  he  must  prove  the  allegations  as  to  his  estate,  but  the 
defendant  cannot  lustily  the  force  by  showing  title  in  himself. 

In  case  of  forcible  entry  and  detainer  removed  into  the  District  Court 
by  certiorari,  the  District  Court  may  decide  upon  errors  in  fact,  but  whe- 
ther the  Supreme  Court  can  do  so  on  writ  of  error  is  uot  settled. 

Bracken  filed  a  complaint  before  William  Henry,  a  justice  of 
the  peace  in  Iowa  county,  setting  forth  that  he  was  the  owner  in 
fee  of  the  undivided  one-third  part  of  the  east  half  of  the  north- 
east quarter  of  section  5,  township  4,  of  range  3,  cast,  and  being 
in  possession  thereof',  Sylvester  B.  Preston,  William  Kendall,  Wil- 
liam Nichols,  and  William  T.  Philips,  forcibly  entered  upon,  and 
forcibly  detained  the  same. 


REPORTS.  221 

Upon  the  trial  of  the  complaint,  Bracken  wished  to  examine 
some  of  the  jurors  under  oath,  previous  to  their  being  sworn  in 
chief,  as  to  whether  they  had  formed  or  expressed  an  opinion  in 
relation  to  the  matter  to  he  tried,  hut  the  justice  refused  to  allow 
the  qualifications  of  the  jurors  to  bo  inquired  into,  and  they  were 
sworn  in  chief. 

After  the  complainant's  evidence  was  heard  in  relation  to  his 
title,  possession,  and  the  forcible  entry  and  detainer  complained 
of,  the  defendants  proved  in  justification,  that  one  Andrew  Rum- 
frey  and  the  complainant,  previous  to  the  occupying  of  the  prem- 
ises by  the  defendants,  had  some  conversation  in  which  Rumfrey 
said  he  wished  to  dig  on  the  complainant's  ground,  and  complain- 
ant said  he  might  do  so,  but  that  he  wanted  the  mineral,  and  Rum- 
frey replied,  that  if  he  would  give  as  much  for  it  as  any  body  else 
he  might  have  it;  that  after  this  Rumfrey  mined  upon  the  land  in 
dispute,  and  after  working  some  time,  sold  his  interest  in  it  to  the 
defendants:  Written  transfers  from  Rumfrey  to  each  of  the  de- 
fendants, embracing  together  all  his  interest,  were  produced  and 
read  as  evidence.  To  all  of  this  testimony,  the  complainant  ob- 
jected, the  justice  overruling  his  objections. 

The  jury  returned  a  verdict  in  favor  of  the  defendants,upon  which 
the  justice  rendered  judgment.  Bracken  removed  the  proceed- 
ings into  the  District  Court,  by  certiorari,  and  assigned  the  fol- 
lowing errors  to  reverse  the  judgment  of  the  justice. 

1.  The  justice  error  in  refusing  the  complainant  the  privilege 
of  asking  the  jurors  under  oath  whether  they  had  formed  or  ex- 
pressed an  opinion. 

2.  After  a  peaceable  entry  had  beer,  proved  by  the  complain- 
ant, the  justice  erred  in  suffering  any  testimony  whatever  to  show 
that  die  defendants  had  any  right  of  possession,  for  if  they  had  any 
such  right,  they  could  only  obtain  it  by  due  course  of  law,  and 
could  not  justify  the  force. 

3.  The  justice  erred  in   permitting  the  written   transfers  from 
Rumfrey  to  Philips  and  the  other  defendants,  to  bo  read  as  evi- 
dence for  the  defendants,  as  there  was  no  proof  that  Rumfrey  had 
any  interest  that  he  could  transfer. 

4.  If  the  defendants  could  justify  the  force  under  the  transfers 
from  Rumfrey,  they   could  only  do  so,  by  showing  that  they  and 
Rumfrey  had  complied  with  the   terms  of  the   contract   with 
Bracken. 


222  REPORTS. 

5.  The  verdict  was  coetrary  to  law  and  evidence. 

Upon  the  consideration  of  these  errors,  the  District  Court  affirm- 
ed the  judgment  of  the  justice;  to  reverse  which  decision,  Brack- 
en has  prosecuted  this  writ  of  error. 

Judge  IEVIN,  being  a  part  owner  of  the  land,  though  not  inter- 
ested in  the  subject  matter  of  this  suit,  declined  sitting  in  the 
case. 

MOSES  M.  STRONG,  for  pl'ff  in  error: 

On  the  trial  before  the  justice,  the  complainant  asked  to  have 
some  of  the  jurors  examined  under  oath,  as  to  whether  they  had 
formed  or  expressed  an  opinion  upon  the  subject  about  to  be  sub- 
mitted, which  was  refused  by  the  justice.  This  is  tUe  first  error 
in  the  proceedings.  The  statute  makes  the  inquiry  a  proper  one 
in  the  District  Courts,  and  it  is  a  common  law  tight  in  all  cases  of 
trial  by  jury.  The  trial  by  jury  before  a  justice  is  of  no  benefit,  if 
a  party  is  bound  to  submit  to  a  jury  that  are  prejudiced  against 
him  and  who  have  pre-judged  the  case. 

The  evidence  in  the  case  shows  that  the  complainant  was  in 
peaceable  possession  of  the  premises,  and  that  the  defendants 
committed  the  forcible  entry  complained  of.  The  justice  per- 
mitted the  defendants  to  justify  by  introducing  evidence  to  show  a 
right  of  possession  in  themselves.  This  they 'did  by  proving  a 
vague  conversation  between  one  Rurnfrey  and  the  complainant 
about  Rumfrey 's  digging  on  the  ground,  and  then  by  written 
transfers  from  Ruorifrey  to  the  defendants.  We  contend  that  all 
this  evidence  wus  improper,  and  should  not  have  beun  admitted: 
That  on  the  trial,  nothing  but  the  force  complained  of,  could  le- 
gally be  inquired  into,  and  that  in  proceedings  of  this  kind,  the  de- 
fendants cannot  justify  by  showing  any  right  or  title  in  themselves. 
But  if  such  testimony  had  been  legally  admissible  in  this  case,  the 
vague  conversation  between  Rumfrey  and  Bracken  did  not  amount 
to  a  contract  that  could  be  legally  carried  into  effect.  There  was 
nothing  in  it  that  was  definite,  either  as  to  terms,  duration,  loca- 
tion, or  any  thing  else.  Admitting,  however,  that  it  was  a  con- 
tract between  Bracken  and  Rumfrey,  the  utmost  construction 
thai  could  be  put  upon  it,  would  only  make  a  Rumfrey  a  tenant 
at  will,  and  that  would  not  vest  in  him  any  right  or  interest  in  the 
soil  that  he  could  transfer  to  another.  13  John.  Rep.  106;  2 
Caine's  Rep.  1G9;  6  Amer.  Com.  Law,  389;  2  Yerger's  Tenn. 
Rep.  249;  4  Ver.  Rep.  291. 


REPORTS.  223 

DUNN,  for  def 'ts  in  error: 

The  statute  of  forcible  entry  and  detainer  is  perfect  in  itself, 
and  does  not  refer  to  any  other  act  of  the  legislature  to  carry  out 
any  of  its  provisions:  It  must,  therefore,  be  construed  by  itself 
alone,  without  considering  it  in  connection  with  any  other.  This 
Statute  does  not  provide  for  the  challenge  of  jurors  for  the  cause 
assigned,  and  the  justice  could  not  have  allowed  it;  if  he  had  done 
so,  he  had  no  power  to  fill  the  jury. 

But  if  the  justice  erred  in  this  decision,  still,  if  the  verdict  of 
the  jury  was  warranted  by  the  evidence,  the  Court  will  not  set  it 
aside.  If  the  Court  examines  the  evidence  in  the  case,  it  will  be 
found  that  no  othercorrect  verdict  could  have  been  given  upon  it 
than  the  one  found  by  the  jury.  There  was  no  proof  of  right  in 
the  complainant  or  offeree  by  the  defendants. 

But  we  contend,  that  on  certiorari,  the  Court  cannot  inquire 
into  the  facts  of  the  case.  Errors  of  law  alone  can  be  examined 
by  the  Court;  10  Wendall,422. 

BURNETT,  in  reply: 

If  we  consider  the  very  object  of  a  trial  by  jury,  the  complainant 
certainly  had  aright  to  test  the  qualifications  of  the  jurors  called 
to  try  his  complaint.  Every  party  has  a  right  to  a  fair  and  impar- 
tial jury  who  have  not  pre-judged  his  case.  The  statute  requires 
that  the  jurors  shall  be  qualified  to  try  a  cause  in  the  District 
Court.  This  cannot  be  applied  to  one  qualification  or  anolher, 
but  they  must  be  so  qualified  in  every  respect.  If  ihen  it  would 
be  error  in  the  District  Court  to  refuse  to  examine  into  their  qual- 
ifications and  force  upon  a  parly  a  prejudiced  juror,  it  must  be  er- 
ror in  the  justice.  But  it  is  said,  that  if  the  evidence  sustains  the 
verdict,  the  court  cannot  set  it  aside,  on  account  of  any  legal  de- 
fects in  the  jury.  I  do  not  understand  this  to  be  the  law.  It  is 
immaterial  what  the  court  may  think  of  the  testimony,  if  there  was 
error  in  ihe  empannelling  of  the  jury,  and  the  party  was  deprived 
of  a  legal  right  in  the  selecting  and  Irving  the  jurors,  the  court  is 
bound  to  set  aside  the  verdict. 

Again  it  is  said  that  the  court  cannot  look  into  the  facts  on  cer- 
tiorari, and  a  case  in  10  Wondell  has  been  referred  to  to  establish 
the  principle.  By  an  examination  of  the  eleventh  and  sixteenth 
sections  of  the  statute,  it  will  be  found  that  the  principle  cannot  be 
applied  here.  The  eleventh  section  provides  that  the  party  ag- 
grieved by  the  decision  or  judgment  of  the  justice,  or  verdict  of 


224  REPORTS. 

the  jury,  may  remove  the  proceedings  into  the  District  Court  by 
certiorari,  and  the  sixteenth  section  directs  that  in  such  case,  the 
court  shall  give  judgment  according  to  the  very  right  of  the  case. 
Here  then  tiie  party  may  have  the  writ  and  remove  the  proceed- 
ings, although  the  verdict  of  the  jury  may  be  the  only  thing  in  the 
case  that  aggrieves  him,  and  to  say  that  the  court,  after  the  cause 
is  removed,  cannot  look  into  (he  facts,  is  to  make  this  portion  of 
the  statute  a  dead  letter. 

Opinion  of  the  court,  by  Judge  MILLER: 

Charles  Bracken  commenced  proceedings  before  a  justice  of 
the  peace  of  Iowa  county  against  the  defendants,  under  the  act  to 
prevent  forcible  entries  and  detainers.  The  complainat  charged  that 
the  defendants  made  an  unlawful  and  forcible  entry  into  his  lands 
and  tenements  and  with  strong  hand  detained  the  same.  The 
jury  found  for  the  defendants,  and  the  case  was  removed  by  the 
plaintiff  by  certiorari,  to  the  District  Court  of  Iowa  county,  where 
the  judgment  before  the  justice  was  affirmed.  The  plaintiff  there- 
upon sued  out  this  writ  of  error. 

The  first  error  assigned  is;  that  the  justice  refused  to  have  the 
jurors  sworn  to  answer  questions  respecting  their  capacity  to  serve 
as  jurors,  and  whether  they  had  formed  or  expressed  an  opinion 
of  the  merits  of  the  cause. 

Section  26  of  the  act  concerning  grand  and  petit  jurors,  gives 
authority  to  the  Distiict  Courts  to  swear  the  jurors,  but  not  to 
justices  of  the  peace.  There  is  no  such  authority  given  by  law 
to  justices  of  the  peace.  Without  authority  by  law  the  court  or 
justice  has  no  right  to  require  jurors  to  be  sworn  to  answer  ques- 
tions, whether  they  have  declared  opinions  on  (he  case .  It  would 
be  the  duty  of  the  justice  to  admonish  them,  that  if  they  did  not 
feel  indiffeicnt,  or  had  pre-judged  the  cause  or  declared  their  opin- 
ions, they  should  disclose  it.  The  Commonwealth  vs.  Dcnnie,  4 
Yeats,  267.  Without  an  act  on  the  subject  a  juror  may  be  sworn, 
but  there  is  no  obligation  to  do  so;  McCorclc  vs.  Binns,  5  Binney, 
340.  In  this  case  there  is  not  even  an  allegation  (hat  any  one  of 
the  jurors  had  formed  or  expressed  an  opinion,  and  the  justice 
not  being  obliged  by  law  to  swear  a  juror  on  the  subject,  there  is 
no  error  in  the  refusal  of  the  justice  to  do  so.  But  that  there 
should  be  a  law  requiring  it  in  cases  before  justices  of  the  peace, 
there  is  no  doubt. 

The  second  error  assigned,  is  as  follows:     The  lease  to  An- 


REPORTS.  225 

drew  Rumfrey  was  only  a  parol  lease  which  only  created  a  ten- 
antcy  at  will,  and  might  terminate  at  the  option  of  either  party; 
and  Rumfrey  had  not  such  an  interest  as  could  be  transferred. 

This  relates  to  testimony  given  on  the  part  of  the  defendants, 
and  should  not  have  been  allowed  before  the  jury;  and  will  not 
be  considered  here.  If  the  cause  had  turned  on  this  evidence, 
the  judgment  before  the  justice  should  be  reversed.  The  de- 
fendants are  proceeded  ngainst  for  forcible  entry  and  detainer. — 
They  have  no  right  to  justify  the  force  by  showing  title  in  them- 
selves. It  i&  in  the  nature  of  a  criminal  proceeding  against  them, 
and  they  cannot  justify  the  forcible  entry  and  detainer  on  the 
strength  of  their  title.  In  a  proscution  of  this  nature,  the  title  to 
the  premises,  as  between  the  defendants  and  relator  or  complain- 
ant, cannot  be  inquired  into,  though  the  latter  is  bound  to  set 
forth  his  title  so  far  as  to  show  himself  within  the  provisions  of 
the  act.  That  title  may  be  controverted  by  the  defendant,  but 
he  cannot  set  up  his  own  as  a  substantive  matter  of  defence,  be- 
cause the  question  of  title  cannot  be  tried  in  this  action;  The 
People  vs.  Godfrey,  1  Hill,  240.  In  a  proceeding  of  this  kind, 
the  complainant  must  set  forth  a  seisin  or  possession  within  the 
perview  of  the  act,  or  whether  his  estate  be  a  freehold  or  term 
of  years;  and  on  the  traverse,  the  allegations  as  to  his  estate 
must  be  proved  by  him:  But  the  defendant  cannot  justify  the 
force  by  showing  a  title  in  himself:  He  may  controvert  the  facts 
by  which  the  complainant  attempts  to  show  title  in  himself;  The 
People  vs.  Nelson,  13  John.  340.  The  same  doctrine  will  be  found 
in  the  cases  of  The  Peoplers.  Ricket,  8  Cowen,  220;  The  People 
vs.  LfConard,  11  John.  504.  And  if  the  title  of  the  defendant,  or 
his  right  of  possession  is  paramount,  he  must  resort  to  an  appro- 
priate remedy  to  maintain  his  rights. 

The  third  error  assigned  is  as  follows:  "  It  having  been  proven 
that  the  plaintiff  was  in  the  peaceable  possession  of  the  land,  he 
could  not  have  been  ousted  only  by  due  course  of  law." 

By  the  sixteenth  section  of  the  act  to  prevent  forcible  entries 
and  detainers,  the  District  Court  to  which  any  certiorari  is  return- 
ed, shall  proceed  to  hear  and  determine  the  same,  as  the  very 
right  of  the  case  shall  appear,  without  regarding  technicalities  or 
imperfections  in  the  return.  Evidently,  from  this  section  and 
other  provisions  in  said  statute  respecting  the  removal  of  causes 
by  certiorari  to  the  District  Court,  that  court  has  the  power  to  de- 

29 


226  REPORTS. 

cido  upon  errors  of  fact  as  well  as  of  law.  This  court  is  a  court 
for  the  correction  of  errors  in  questions  of  law,  and  generally, 
should  not  inquire  into  the  correctness  of  the  decisions  of  the 
District  Courts  in  questions  of  fact.  As  the  court  is  not  full,  and 
this  case  does  not  require  it,  we  will  not  in  this  case,  establish  a 
rule  on  this  subject,  although  referred  in  the  argument  to  a  case 
in  point;  Columbia  Turnpike  Company  vs.  Hayward,  10  Wen- 
dell, 422. 

In  this  case  the  complainant  did  not  make  out  by  proof,  a  forci- 
ble entry  and  detainer  against  the  defendants. 

Judgment  affirmed  with  costs. 

MOSES  M.  STRONG  and  BURNETT,  for  plaintiff  in  error. 

DUNN,  for  dafendants  in  error. 


JOSEPH  ROLETTE,  appellant,        \ 

JANE  F.  ROLETTE  and  (  Appeal  from  Crawford  county. 

BERNARD  W.  BRISBOIS,a^9eZ/ee»,) 

A  DEED  entered  into  between  husband  and  wife  of  one  part  and  a  trus- 
tee of  the  other,  executed  after  a  separation  between  the  husband  and  wife 
for  the  purpose  of  securing  to  the  wife  a  separate  maintenance,  is  a  valid 
contract,  and  cannot  be  rescinded  in  chancery  at  the  suit  of  the  husband 
on  the  ground  of  its  being  against  the  policy  of  the  law. 

On  the  22d  September,  1834,  Joseph  Rolette,  and  Jane  F.  his 
wife,  having  been  for  some  time  living  separately  and  apart  from 
each  other,  entered  into  an  indenture  with  Bernard  W.  Brisbois,  a 
trustee  mutually  chosen,  by  which,  among  other  things,  Joseph 
Rolette  covenanted  to  the  trustee  to  furnish  and  provide  a  sepa- 
rate maintenance  for  his  wife,  as  specified  in  said  deed.  After 
some  time  the  husband  refused  to  furnish  the  support  and  main- 
tenance for  his  wife  according  to  the  terms  of  the  deed,  and  Bris- 
bois, the  trustee,  cammenccd  an  action  of  covenant  to  recover  da- 
mages for  the  refusal.  Pending  the  action,  on  the  10th  March, 
1840,  another  indenture  was  entered  into  between  the  said  Ro- 


REPORTS.  227 

lette  and  wife  of  the  one  part  and  the  said  Brisbois  as  a  trustee  of 
the  other,  which  recited:  "that  whereas  circumstances  have, for 
several  years  last  past,  prevented  the  said  Joseph  Rolette  and 
Jane  F.  Rolette  his  wife  from  living  together  in  the  relations  of 
husband  and  wife;  and  whereas  the  said  Jane  still  chooses  to  live 
separately  and  apart  from  her  said  husband,  and  the  said  parties 
have  agreed  that  she  shall  do  so;"  and  then  provided,  that  in  con- 
sideration of  the  obligation  of  the  said  Joseph  to  support  his  said 
wife  suitably  to  her  condition  in  life,  and  in  consideration  of  five 
dollars  to  him  paid,  he,  the  said  Joseph,  granted  to  the  said  Bris- 
bois in  trust  for  the  sole  and  separate  use  of  the  wife,  an  annuity 
of  the  yearly  sum  of  eight  hundred  dollars  payable  quarterly  for  the 
life  of  the  wife.  By  subsequent  provisions  of  the  deed,  the  action 
of  covenant  was  to  be  dismissed,  and  all  causes  of  action  for 
which  it  was  commenced  were  released,  and  the  deed  of  the  22d 
September,  1834,  was  cancelled.  The  payment  of  the  annuity, 
and  the  covenant  of  the  latter  deed,  were  secured  by  a  bond  to  the 
trustee  in  the  penalty  of  thirty  thousand  dollars,  and  a  moitgage 
upon  real  estate  at  Prairie  du  Chien. 

Joseph  Rolette  filed  a  bill  in  chancery  in  the  Crawford  District 
Court,  against  his  wife  and  the  trustee,  setting  up  the  latter  deed, 
bond,  and  mortgage,  and  also  the  deed  that  was  cancelled; 
charging  that  the  separation  was  of  her  will  and  not  of  his;  that 
he  was  willing  to  support  her  at  his  own  house,  and  that  the  said 
deed,  bond,  and  mortgage  were  without  any  sufficient  considera- 
tion, contrary  to  the  whole  policy  of  the  law  in  relation  to  mar- 
riage, and  against  the  interest,  order,  and  happiness  of  society. 
The  bill  prayed  that  the  said  deed,  bond,  and  mortgage  should  be 
surrendered  up  and  cancelled. 

To  this  bill  the  defendant  filed  a  general  demurrer,  and  at  tho 
October  term,  1842,  the  District  Court  decreed  that  the  bill  be 
dismissed  with  costs.  From  this  decree  the  complainant  appealed 
to  this  Court. 

EASTMAN,  for  appellant: 

Contracts  for  the  separation  of  husband  and  wife,  and  for  sepa- 
rate maintenance,  founded  on  such  separation,  have  undergone 
great  scrutiny  in  the  English  and  American  courts  of  late  years. 
The  current  of  modern  decisions  is  against  the  validity  of  all 
agreements  of  the  kind. 

The  case  of  Rogers  vs.  Rogers,  4  Paige's  Chy.  Rep,  510,  dc- 


228  REPORTS. 

cided  in  New  York  in  1834,  was  where  a  contract  for  a  separate 
maintenance  bad  been  entered  into  between  the  husband  and  wife 
with  a  trustee.  In  that  case  the  Chancellor  said:  "  It  is  impossi- 
ble for  a  feme  covert  to  make  any  valid  agreement  with  her  hus- 
band to  live  separately  from  him,  in  violation  of  the  marriage  con- 
tract, and  the  duties  she  owes  to  society,  unless  it  be  done  under 
the  sanction  of  a  court  of  chancery,  and  then  only  when  the  con- 
duct of  the  husband  would  entitle  the  wife  to  a  decree  for  a  sepa- 
ration. The  law  of  the  land  does  not  sanction  a  voluntary  agree- 
ment fora  separation  between  husband  and  wife." 

The  ecclesiastical  courts  in  England  have  decided,  that  it  is  im- 
possible for  the  parties  in  marriage  lawfully  to  relieve  each  other 
from  their  reciprocal  duties,  which  the  relation  of  husband  and 
wife  impose  upon  them.  Those  courts  consider  it  an  illegal  con- 
tract, exhibiting  a  dereliction  of  those  mutual  offices  which  the 
panics  are  not  at  liberty  to  desert;  an  assumption  of  a  false  cha- 
racter, contrary  to  the  real  status  persona  which  they  have  con- 
tracted to  observe  and  abide  by.  In  Rogers  vs.  Rogers,  the 
Chancellor  referred  to  the  case  of  Westmeath  vs.  Westmeath,  2 
Haggard's  Eccl.  Rep.  238;  and  also  to  the  case  of  Mortimer  vs. 
Mortimer,  id.  543.  The  case  of  Westmeath  vs.  Westmeath,  was 
an  application  to  the  consistoral  court  for  a  restoration  of  conju- 
gal rights.  In  December,  1817,  in  consequence  of  the  brutal 
conduct  of  Lord  Westmeath,  a  deed  of  separation  was  executed 
to  a  trustee,  providing  for  a  separate  maintenance.  They,  how- 
ever, continued  to  live  together  until  1818.  In  November,  1818, 
a  new  instrument  of  separation  was  executed,  and  £300  per  an- 
num settled  upon  the  lady.  This  deed  recites  that  disputes  and 
difficulties  had  arisen  between  the  parties,  and  "  that  they  were  on 
the  point  of  living  separate  and  apart,  but  by  the  mutual  interven- 
tion of  friends,  she  had  consented  to  live  and  cohabit  with  him 
after  the  execution  of  the  deeds."  In  June,  1819,  the  parties 
finally  separated,  and  this  bill  wis  filed  to  enforce  conjugal  rights; 
and  at  the  same  time,  Lord  Westmeath  filed  his  bill  in  the  chan- 
cery court,  to  have  these  deeds  delivered  up  to  be  cancelled.  To 
the  bill  in  the  consistoral  court,  these  deeds  were  pleaded  in  bar. 
That  court  decided  that  Lady  W.  should  return  to  her  husband; 
an  appeal  was  taken,  and  in  Hilaray  term,  1827,  the  case  was  de- 
cided by  Sir  J.  Nicoll.  After  the  deeds  of  separation  of  1818 
were  executed,  no  matrimonial  cohabitation  took  place  between 


REPORTS.  229 

the  parties,  but  to  conceal  their  separation  from  the  world.  Lord 
W.  continued  to  occupy  a  room  in  the  house  until  June,  1819. 
The  decision  of  the  consistoral  court  was  reversed,  but  it  was  oil 
account  of  the  cruel  treatment  of  the  husband,  and  a  separation 
was  decreed,  which  decision  was  subsequently  confirmed  by  the 
high  court  of  delegates.  The  court  here  considered  the  deed  of 
separation  no  bar  to  the  action,  but  enforced  its  terms  by  way  of 
settlement  upon  the  wife,  taking  the  deed  which  was  agreed  upon 
between  the  parties  as  a  guide  for  the  amount  of  the  settlement 
which  was  proper  to  be  made. 

The  case  of  Lady  Mortimer  vs.  Lord  M ortimer  >  was  also  a  bill 
for  the  restoration  of  conjugal  rights.  A  deed  of  separation  was 
entered  into  between  the  parties  in  1811.  In  181G,  the  bill  was 
filed.  Sir  William  Soott,  in  commenting  on  this  deed  of  separa- 
tion which  was  pleaded  in  bar  in  this  case,  says:  "  This  court  con- 
siders deeds  of  separation  as  illegal  contracts,  and  not  plcadable, 
and  entirely  insignificant.  They  imply  a  renunciation  of  stipula- 
ted duties  which  the  parties  are  not  at  liberty  to  desert;  from  the 
solemnities  of  a  contract,  from  which  the  parties,  by  their  own 
act,  cannot  relieve  themselves." 

In  the  case  of  Carson  vs.  Murray,  el  als.  3  Paige's  Chy.  Rep. 
483,  decided  in  1822,  the  Chancellor  says:  "An  agreement  for  a 
separation  cannot  be  supported  unless  fhe  separation  has  already 
taken  place,  or  is  to  take  place  immediately  upon  the  execution 
of  the  deed."  He  also  decided,  that  such  an  agreement  will  be 
rescinded,  if  the  parties  afterwards  cohabit  or  live  together  for 
ever  so  short  a  time.  "It  may  well  be  doubted,  (says  he,)  whe- 
ther public  policy  does  not  forbid  any  agreement  for  a  separation 
between  husband  and  wife;  and  whether  it  does  not  require  that 
such  an  agreement  should  be  limited  to  cases,  where,  by  the  pre- 
vious misconduct  of  one  of  the  parlies,  the  other  is  entitled  to 
have  the  marriage  contract  dissolved  by  a  decree  of  court.1'  He 
refers  to  the  case  of  St.  John  vs.  St.  John,  11  Vescy,  526,  where 
Lord  Eldonheld  the  same  doctrine  precisely;  and  also  to  the  case 
of  Westmeath  vs.  Westmeath,  1  Jacob's  Rep.  126;  4  English 
Chan.  R.  55. 

In  the  case  of  Titleyvs.Durand,  7  Price's  Excheq.  Rep.  577; 
the  court  decided:  "that  a  deed  between  husband  and  wife  and 
a  trustee,  covenanting  to  pay  the  wife  an  annuity  in  case  she 
should  live  separate  and  apart  from  him,  is  void,  as  being  a  deed 


230  REPORTS. 

made  in  contemplation  of  a  future  separation,  and  is  therefore  con- 
trary to  the  policy  of  marriage;  and  that  a  plea,  to  an  action  of 
covenant  upon  such  a  deed,  lhat  the  parties  afterwards  lived 
together,  is  a  good  plea;  and  that  a  deed  could  not  be  made  pro- 
viding for  a  future  separation  of  husband  and  wife. 

In  the  case  of  Marshall  vs.  Rutlon,8  T.  R.  545,  Lord  Kenyon 
says:  "An  agreement  to  live  separate,  is  u  contract  supposed  to  be 
made  between  two  persons  who  in  law  are  but  one,  and  on  that  ac- 
count are  not  able  to  contract  with  each  other,  which  sweeps  away 
the  whole  foundation  of  their  legality,  and  consequently,  the  whole 
superstructure  must  fail.  This  objection  meets  the  plaintiff  in 
limini.  Suet  a  contract  cannot  be  valid,  which  has  for  its  object 
the  contravention  of  the  whole  policy  of  the  law  relating  to  domes- 
tic life." 

In  the  case  of  Warrall  vs.  Jacob,  3  Merivale,  268,  the  Master 
of  the  Rolls  said :  "  The  court  will  not  carry  articles  of  separation 
into  execution;  and  that  such  deeds  are  void." 

In  the  chancery  suit  of  Westmeatk  vs.  Westmeath,  1  Jacob, 
126-4  i,  before  cited,  the  Lord  Chancellor  says:  "If  the  question- 
whether  the  court  would  or  would  not  enforce  articles  of  this  sort 
were  not  pre-judged  by  any  decision,  I  should  say,  I  think  no  court 
ought  to  act  on  them." 

The  Chancellor,  in  Rogers  vs.  Rogers,  before  cited, says:  "In 
looking  over  the  cases,  which  are  extremely  well  collected  in  Ro- 
per, I  perceive  that  it  seems  to  have  struck  every  one  as  extraor- 
dinary, that  such  deeds  should  ever  have  been  supported.  The 
law  has  imposed  upon  husband  and  wife  duties  of  the  most  sacred 
nature,  that  no  court  should  allow  them  to  disregard." 

The  same  doctrine  is  held  in  many  other  cases,  not  deemed  ne- 
cessary now  to  refer  to.  The  current  of  authorities,  supported  by 
the  soundest  reason,  is  against  the  validity  of  such  deeds,  and  sus- 
tains the  case  of  the  appellant  in  the  cause  under  consideration. 

BURNETT,  for  appellees: 

The  distinction  does  not  seem  to  have  been  drawn  between 
deeds  of  separation  and  deeds  to  secure  a  separate  maintenance- 
nor  between  contracts  for  a  separation  that  has  actually  taken 
place,  and  contracts  providing  for  a  future  separation. 

Deeds  of  separation  and  for  separate  maintenance,  were  for- 
merly sustained,  almost  without  limitation  or  restriction,  in  the 
courts,  both  of  law  and  equity,  in  England.  One  of  the  oldest 


REPORTS.  231 

cases  in  the  books,  is  that  of  Gawden  vs.  Draper,  2  Ventr.  217, 
decided  in  1690.  Thai  was  an  action  of  covenant  on  an  inden- 
ture, whereby  the  defendant  covenanted  that  his  wife  should  live 
separately  and  apart  from  him  until  both  should  give  notice  in 
writing,  attested  by  two  witnesses,  to  cohabit  again,  and  that  dur- 
ing the  separation  he  would  pay  the  plaintiff  £300  per  annum,  in 
quarterly  payments,  for  his  wife's  maintenance.  The  action  was 
brought  to  recover  £75  for  one  quarter  of  the  annuity  then  in 
arrear.  The  defendant  pleaded  m  bar  a  subsequent  indenture 
between  the  defendant  and  wife  of  one  part  and  the  plaintiff  of 
the  other,  which,  reciting  the  first  indenture,  and  that  the  defend- 
ant and  his  wife  did  then  cohabit,  and  that  it  was  the  true  intent 
and  meaning  of  ail  parties  that  so  long  as  they  did  cohabit  the  said 
annuity  should  cease;  it  was  therefore  covenanted  by  the  plaintiff 
that  so  long  as  the  defendant  and  wife  should  cohabit,  the  defend- 
ant should  be  saved  harmless  from  the  said  annuity,  and  might  re- 
tain it,  and  averred  that  ever  since  the  last  indenture  they  did  co- 
habit. The  plaintiff  replied  that  they  did  not  cohabit  modo  et 
forme,  &c. ;  to  which  the  defendant  demurred.  The  court  deci- 
ded that  unless  the  cohabitation  was  according  to  the  first  inden- 
ture, it  was  no  bar  to  the  action,  and  gave  judgment  for  the 
plaintiff. 

It  was  ruled  by  Lord  Holt,  C.J.  in  the  case  of  To dd  vs.  Stokes, 
1  Salk.  116,  that  where  a  husband  and  wife  part  by  consent,  and 
he  secures  to  her  a  separate  maintenance,  and  pays  it  according 
to  agreement,  he  is  not  answerable  for  necessaries  furnished  her. 
The  same  doctrine  was  recognized  in  the  more  modern  case  of 
Nurse  vs.  Craig,  5  Bos.  &  Pull.  148.  These  decisions  can  only 
be  sustained  by  acknowledging  the  validity  of  the  contract  for  se- 
parate maintenance. 

The  courts  of  common  law  went  so  far  upon  this  subject,  that 
the  King's  Bench,  in  the  celebrated  case  of  Corbctt  vs.  Poclnitz, 
1  T.  R.  5,  decided,  in  the  time  of  Lord  Mansfield,  that  a/cmc  co- 
vert, living  apart  from  her  husband  by  deed  of  separation,  and 
having  a  large  maintenance  settled  upon  her,  beyond  the  control 
of  the  husband,  might  contract,  sue  and  be  sued  as  a  feme  sole. 
This  decision  was  in  17S5,  and  was  considered,  so  far  as  it  estab- 
lished the  powers  of  the  wife  to  act  as  zfcmc  sole,  as  a  dangerous 
innovation  of  the  ancient  law;  and  its  authurity  was  assailed  from 
time  to  time,  until,  in  the  case  of  Marshall  vs  Rutton,  8  T.  R. 


232  REPORTS. 

545,  the  Court  of  King's  Bench  decided,  in  1800,  that  a  feme  co. 
vert  could  not  contract,  and  sue  and  be  sued,  as  a.  feme  sole, 

though  she  be  living  apart  from  her  husband  and  have  a  separate 
maintenance  secured  to  her  by  deed.  Tint  the  only  way  in  which  a 
separation  can  be  safe  and  effectual  is,  by  having  recourse  to  trus- 
tees, in  whom  the  property  of  which  it  is  intended  the  wife  shall 
have  the  disposition,  may  vest,  uncontrolled  by  the  husband,  and 
it  would  fall  within  the  province  of  a  court  of  equity  to  enforce 
such  a  trust.  It  will  be  perceived  that  the  point  decided  in  the 
latter  case,  which  is  one  referred  to  by  the  appellant,  was  not  on 
the  validity  of  any  deed  for  a  separation  or  separate  maintenance, 
but  on  the  effect  of  such  a  deed;  whether  the  wife,  under  it} 
could  act,  sue  and  be  sued,  as  a  feme  sole. 

Afterwards,  the  case  of  Rodney  vs.  Chambers,  2  East.  283,  was 
decided  in  the  King's  Bench  in  1802.  That  was  an  action  of  co- 
venant by  the  trustees,  upon  a  deed,  which  provided,  among  other 
things,  that  in  case  of  a  future  separation  of  the  husband  and  wife, 
•with  the  consent  of  the  trustees,  the  husband  should  pay  to  the 
trustees  £200  per  annum  in  trust  for  the  wife  for  life.  The  de- 
claration averred  separation  with  the  consent  of  the  trustees,  and 
that  the  annuity  of  £'200  for  one  year  was  in  arrear  and  unpaid. 
The  point  at  issue  submitted  to  the  court,  was,  whether  such  a  co- 
venant was  valid  and  effectual;  it  being  contended  there,  as  it  is 
here,  that  it  was  contrary  to  the  policy  of  the  law,  and  subversive 
of  good  morals.  But  the  court,  after  a  full  review  of  the  authori- 
ties, gave  judgment  for  the  plaintiffs. 

In  Lord  Vane's  case,  13  Ejst.  171,  the  parties  had  separated, 
and  afterwards  agreed  to  cohabit  together,  upon  which  occasion, 
articles  were  entered  into,  by  which  he  covenanted,  that  if  she 
should  afterwards  desire  to  live  apart  from  him,  he  would  not  mo- 
lest her.  After  this,  in  consequence  of  ill  treatment,  they  sepa- 
rated a  second  time,  and  upon  articles  of  the  peace  being  exhib- 
ited against  him,  the  validity  of  the  deed  was  not  questioned  by 
the  court. 

In  later  cases,  it  has  been  decided,  that  in  actions  on  deeds  for 
separate  maintenance,  brought  by  trustees  against  the  husband,  it 
is  no  bar  to  the  action  to  plc.-id  that  the  wife  hud  committed  adul- 
tery. 2  Bint.  &,  C.  517;  S  Bing.  250;  and  also  the  case  of  Field 
vs.  Scrrars,  M.  T.  1801,  1  2V  II.  121. 

Chancellor  Kent,  (2  Com.  135,)  says,  that  the  rule  laid  down  in 


REPORTS.  233 

Todd  vs.  Stokes,  and  Nurse  vs.  Craig,  (before  referred  to,)  was 
adopted  in  all  its  parts  by  the  Supreme  Court  of  New  York,  in 
Baker  vs.  Barney,  8  John.  Rep.  72. 

]n  Fcnner  vs.  Lewis,  10  John.  Hop.  38;  where  the  husband  and 
wife  had  agreed  to  articles  of  separation,  and  a  third  person  be- 
came a  party  to  the  instrument,  as  the  wife's  trustee,  and  provi- 
sion was  made  for  her  maintenance  and  the  enjoyment  of  separate 
property,  it  was  held,  that  the  declarations  and  admissions  of  the 
•wife  in  relation  to  the  property,  were  adrnissable  evidence  in  fuvor 
of  the  husband,  in  an  action  against  the  trustee  upon  his  covenant 
in  the  deed.  Now,  it  follows,  that  the  declarations  of  the  wife 
could  not  be  evidence  for  the  husband,  unless  the  deed  of  separa- 
tion was  valid,  at  least  so  far  as  the  property  and  maintenance 
were  concerned.  See  also,  the  case  of  Shelthar  vs.  Gregory,  2 
Wendell,  422. 

The  early  decisions  in  chancery  went  as  far  as  those  in  the 
courts  of  law.  In  Nichols  vs.  Darners,  671,  the  defendant^ 
having  ill-treated  his  wife,  gave  her  a  note  that  if  lie  should  again 
ill-use  her  she  should  have  her  share  of  her  mother's  estate  to  her 
own  use;  and  upon  the  happening  of  subsequent  ill-tieatment  by 
the  husband,  the  wife  and  her  brother  filed  a  bill  against  him  for 
that  purpose,  and  the  Lord  Keeper  decreed  the  interest  to  her  for 
life  for  her  maintenance,  and  afterwards  to  the  husband  for  life, 
and  the  principal  to  the  issue,  if  any;  and  if  none,  to  the  survivor 
of  the  husband  and  wife;  and  he  remarked,  that  the  words  in  the 
note,  "  in  case  he  should  again  ill-use  her,'1  must  have  meant,  "  ia 
case  she  should  be  obliged  to  live  separately  from  him." 

In  some  of  the  early  cases,  articles  uf  separation  were  specifi- 
cally enforced;  Gilb.  Eq.  Rep.  15~,  3,  and  in  the  case  of  fruthvs. 
Gulh,  3  Bro.  04,  it  was  determined,  after  great  consideration,  that 
articles  of  separation  may  be  specifically  inforced  at  the  suit  of 
the  wife,  although  the  husband  offered,  by  his  answer,  to  receive 
her  again.  The  validity  of  a  deed  of  separation,  and  for  separate 
maintenance,  was  sustained  in  th?  case  of  Moore  vs.  Moore,  1 
Atk.  277,  and  it  may  be  inferred  from  the  judgment  of  Lord  Hard- 
wick,  in  that  case,  that  he  considered  an  agreement  for  a  separa- 
tion in  prospective  to  be  good. 

In  Cook  vs.  Wiggins,  10  Vesoy,  191,  it  was  said  that  there  was 
no  doubt  of  the  general  jurisdiction  of  a  court  of  equity  to  decree 
a  specific  performance  of  articles  be  I  ween  husband  and  wife  for 

no 


234  REPORTS. 

separation  and  separate  maintenance.     See  also,  11   Ves.  537. 
10  Ves.  63. 

In  Reade  vs.  Livingston,  3  John.  C.  R.  481,  it  was  held,  that 
a  voluntary  settlement,  after  marriage,  upon  the  wife  and  children, 
was  void  as  to  creditors  at  the  time  of  the  settlement;  but  if  the 
husband  be  not  indebted  at  the  time,  such  settlement  is  valid 
against  subsequent  creditors;  and  Chancellor  Kent  says  that  this 
was  ihe  true  doctrine  of  that  case,  deduced  from  the  English 
authorities. 

We  know  that  the  old  decisions  have,  in  many  points,  been 
overruled  by  more  modern  cases,  and  that  the  court  of  chancery  in 
England,  and  perhaps  in  some  of  the  States,  has  of  late  years  gone 
to  the  utmost  stretch  of  power  and  authority  to  limit  and  restrict 
the  operations  of  deeds  of  separation  and  for  separate  mainten- 
ance. But  no  authority,  ancient  or  modern,  can  be  brought  to  set 
aside  the  deed  in  this  case,  at  the  suit  of  the  husband.  There  is 
not  a  case  to  be  found  where  the  principles  of  this  bill  have  been 
decreed  in  chancery,  and  none  of  the  cases  cited  by  the  appellant 
go  that  length. 

In  Carson  rs.  Murray  and  others,  3  Paige's  Ch.  Rep.  483,  one 
of  the  cases  relied  upon,  the  Chancellor  sustained  the  validity  of 
the  deed,  and  the  portion  of  his  decision  that  has  been  read  mili- 
tates nothing  against  the  deed  in  this  case.  He  only  says,  that 
an  agreement  fora  separation  cannot  be  supported,  unless  ihe  se- 
paration has  previously  taken  place,  or  is  immediately  to  happen; 
and  that  if  the  parties  afterwards  cohabit  or  live  together,  the 
agreement  will  be  rescinded. 

In  the  case  of  Warrall  vs.  Jacob,  3  Merivale,  25G-G8,  one  of 
the  cases  referred  to  by  the  appellant,  Sir  William  Grant,  Master 
of  the  Rolls,  only  decided,  that  chancery  would  not  carry  into  ex- 
ecution articles  of  agreement  between  husband  and  wife;  but  he 
admitted  that  agreements  between  the  husband  and  a  third  per- 
son as  a  trustee,  though  originating  out  of,  and  relating  to  a  sepa- 
ration, were  valid,  and  might  be  enforced  in  equity.  And  Lord 
Eldon,  who  always  entertained  and  expressed  the  greatest  repug- 
nance to  such  deeds,  said:  that,  if  the  question  was  res  Integra, 
untouched  by  dictum  or  decision,  he  would  not  have  permitted 
such  a  covenant  to  be  the  foundation  of  a  suit  in  equity.  But 
dicta  have  followed  dicta,  and  decision  has  followed  decision,  to 
the  extent  of  settling  the  law  on  this  point  too  firmly  to  be  now 
disturbed  in  chancery. 


REPORTS.  235 

The  decisions  of  the  English  ecclesiastical  courts  have  no  au- 
thority in  this  country,  nor  are  they  binding  on  the  courts  of  law 
and  equity  in  England.  But  if  they  were,  what  do  the  case  of 
Westmeath  vs.  Westmeath,  and  Mortimer  vs.  Mortimer,  from  Hag- 
gard, amount  to?  Simply,  that  in  their  proceedings  to  restore  mar- 
ital rights,  to  force  persons  to  live  together,  whatever  may  be  the 
repugnance  of  one  of  the  parties,  a  deed  of  separation  is  no  bar  in 
such  case. 

The  deed  in  Lord  Westmeath's  case  provided  for  a  future  sepa- 
ration; and  he  filed  his  bill  in  chancery  to  have  the  deeds  deliv- 
ered up  and  cancelled,  and  to  enjoin  the  opposite  party  from  pro- 
ceeding at  law  upon  them:  yet,  although  Lord  Eldon  argued 
against  the  law' throughout  his  decision,  he  admitted  that  it  was 
so  firmly  settled  that  he  had  no  authority  to  rescind  the  contract 
or  to  enjoin  the  parties  from  proceeding  at  law  upon  it. 

The  case  of  Titley  vs.  Durand,  decided  in  the  exchequer  by 
Abbott  and  Dallas  in  1819,  only  went  thus  far:  that  a  contract 
for  a  future  separation  of  husband  and  wife  is  void.  It  did  not 
touch  the  principles  of  this  case. 

The  court  will  look  at  the  principles  that  have  been  decided  in 
the  cases,  and  not  take  the  arguments  of  the  Judges  and  Chan- 
cellors, as  authority  in  deciding  this  case.  Some  of  those  argu- 
ments, if  admitted  as  authority,  are  sufficient  to  overturn  the 
whole  system  of  the  law  upon  this  subject  as  it  has  stood  for  more 
than  two  hundred  years. 

The  principles  to  be  deduced  from  all  the  authorities;  principles 
which,  perhaps,  no  court  of  law  or  equity  would  doubt  any  where 
as  law  at  this  day,  are  these:  First:  That  a  contract  between  a 
husband  and  wife,  without  the  intervention  of  a  trustee,  is  void. 
Second:  That  a  contract  with  a  trustee,  providing  for  a  future  sep- 
aration, is  also  void.  Third:  That  a  contract  with  a  trustee,  cov- 
enanting for  the  separate  maintenance  of  the  wife,  where  the  sep- 
aration has  previously  taken  place,  is  valid  both  at  law  and  in 
equity,  and  may  be  enforced  even  though  the  husband  is  willing 
that  the  wife  should  return  to  him  again.  And  fourth:  That  sub- 
sequent cohabitation  will  rescind  a  valid  deed  made  to  a  trustee. 

Now,  to  apply  these  principles  to  the  case  under  consideration. 
The  bill  and  the  deed  show,  that  it  is  not  a  contract  for  separation, 
but  a  contract  to  secure  a  separate  maintenance;  that  the  separa- 
tion had  existed  for  years  when  the  deed  was  executed;  that  the 


236  REPORTS. 

confract  was  made  with  a  trustee  mutually  chosen,  and  the  cove- 
nants are  made  to  him.  No  cohabitation  has  taken  place  since 
the  exectuion  of  the  deeds.  The  separation  is  not  a  part  of  the 
contract,  and  is  only  referred  to  by  way  of  recitation,  and  there  is 
no  covenant  in  relation  to  it;  and  although  it  is  the  reason  that 
led  to  the  contract,  it  is  not  stated  as  the  consideration.  The  con- 
sideration expressed  is  the  husband's  liability  to  provide  for  the 
support  of  his  wife.  The  bill  charges  that  the  deeds  were  with- 
out any  sufficient  consideration,  but  this  is  not  supported  by  the 
facts  set  up.  Beside  his  legal  liability  to  support  his  wife  in  & 
suitable  manner,  an  action  at  law  was  compromised  by  the  deed, 
and  the  cause  of  action  released.  The  compromise  of  a  suit  is  a 
good  consideration,  for  a  promise,  although  there  may  have  been 
no  just  cause  of  action.  The  strictest  tests  may  be  applied,  the 
strongest  authorities  may  be  brought  in  review  and  these  deeds 
will  be  found  not  to  be  in  contravention  of  any  decision  that  has 
been  given. 

Opinion  of  the  Court,  by  Judge  IKVIN: 

This  is  an  appeal  from  Crawford  county. 

Joseph  Rolette,  (the  complainant,)  filed  his  bill  in  the  District 
Court  of  Crawford  county,  at  its  May  term  for  1841,  from  which 
it  appears,  that  the  said  Joseph  Rolette,  and  Jane  Rolette,  his 
wife,  nnd  Bernard  VV.  Brisbois,  as  trustee,  (the  parties  herein 
named,)  entered  inlo  an  agreement  for  the  separate  maintenance 
of  the  said  Jane,  by  which  an  annuity  was  settled  upon  her  during 
her  life,  the  payment  of  which  was  secured  her  by  bond  and  mort- 
gage. The  object  of  the  bill  in  this  case  is.  to  set  aside  and  can- 
cel that  deed  for  separate  maintenance,  as  well  as  4he  bond  and 
mortgage,  for  the  reason  that  the  said  deed,  bond  and  mortgage 
were  made  without  any  legal  or  adequate  consideration;  "and 
with  a  view  to  accomplish  an  illegal  object,  which  the  said  par- 
ties had  no  right  to  assume  upon  themselves  to  accomplish,  and 
the  same  is  contrary  to  the  laws  of  the  land,  and  the  salutary  cus- 
toms and  usages  of  society,  and  ought  to  be  set  aside.1'  To  this 
bill,  a  general  demurrer  was  filed,  which,  upon  argument,  was 
sustained  by  the  District  Court,  and  from  which  decision  aa  ap- 
peal was  taken  to  this  Court. 

When  this  deed,  which  is  made  a  part  of  the  bill,  is  examined, 
it  is  found  to  be  stricdy  such  as  is  sanctioned  and  sustained  by 
the  authorities. 


REPORTS.  237 

In  support  of  the  bill,  the  counsel  relied  G.I  the  case  of  Rogers 
vs.  Rogers,  4  Paige's  N.  Y.  Chancery  Rep.  516.  au<]  the  authori- 
ties therein  cited;  Wcstmcalh  vs.  \Veslmeath,  4  English  Eccl. 
Rep.  238 ;  Mortimer  vs.  Mortimer,  sa me,  543 ;  Carson  vs.  Murray, 
3Paige,4S2;  11  Vesey,  530;  8  Term  Rep.  2  Story's  Equity, 
652,3,4;  1  Chilly's  Practice,  58,  &c. 

In  resistance  of  this  bill,  and  in  support  of  the  demurrer,  the 
counsel  for  the  defendants  relied  on  4  Pelersdorff's  Abridgment, 
85;  Cook  vs.  Wiggins,  10  Vescy,  191;  Rodney  vs.  Chambers, 
2  E;ist.  105;  Gawden.vs.  Draper,  2  Venlr.  217;  Moore  vs.  Moore, 
1  Atkins,  272;  Lord  Vane's  case,  13  East.  171;  Fenncr  vs. 
Lewis,  10  John.  Rep.  38;  Baker  v&.  Barney,  S  John.  Rep.  483; 
Carson  vs.  Murray  and  others,  3  Paige's  Chancery  Rep.  483;  2 
Kent's  Com.  161 ;  and  Shelthar  vs.  Gregory,  2  Wendell,  422. 

The  deed  herein  set  forth  is  not  a  deed  for  the  separation  of  tho 
plaintiff  and  his  wife,  and  which,  as  such,  would  have  been  there- 
upon obnoxious  to  many  of  the  authorities  cited  by  the  counsel 
for  the  complainant,  but  is  a  deed  for  the  separate  maintenance  of 
the  wife,  made  and  entered  into  many  years  after  the  separation 
had  taken  place.  Such  deeds  being  allowable,  and  when  entered 
into  sustained  by  the  courts,  we  can  see  no  objection,  from  any 
thing  which  arises  out  of  the  nature  of  this  contract,  to  the  'deci- 
sion of  the  District  Court. 

If  there  be  anything  in  this  particular  case  to  be  objected  to  in 
support  of  the  bill,  it  must  arise  out  of  the  deed  itself,  but  which, 
as  we  have  already  said,  upon  examination,  we  find  to  be  strictly 
such  as  is  sanctioned  and  sustained  by  the  authorities.  We  there- 
fore think  the  decision  of  the  District  Court  right,  and  affirm  the 
same  with  costs. 

EASTMAN,  for  appellant. 

BURNETT,  for  appellees. 


TABLE  OF  CASES. 


Agan  and  McLaughlin  vs.  Commissioners  of  Grant  County,    -  52 

Barker  vs.  Bryant,      ........  145  to  147 

Barber  ads.  Hyde, 148  to  150 

Bevans  nds.  Slaughter, 195  to  207 

Bicknell  ads.  Brown,     -        - 65  to    68 

Bird  vs.  Fake  &  Cotton,, 131  to  142 

Bloou.er  ads.  Hill, 123  to  127 

Bracken  ads.  Parkison,      -        -        -        -        -        -        -  13  to    21 

Bracken  vs.  Preston,      -- 220  to  226 

Bracken  ads.  Gear,    ........  88  to    91 

Brisbois  &  Rolette  vs.  Rolette,       .•.---.  226  to  237 

Brown  vs.  Bicknell, 65  to    68 

Bushee  rs.  Wright, -  112  to  117 

Bryant  ads.  Barber, -        •  145  to  147 

Bankruptcy,  McKisson  in-------  118 

Coon  vs.  Stevens, 212  to  215 

Clark  &.  Jones  vs.  Gilbert,     -        -        >.        -        -        -        ..  207  to  211 

Clark  &  Jones  ads.  Haney,        ......  142  to  145 

Cotton  &  Fake  ads.  Bird 131  to  142 

Commissioners  of  Grant  county  ads.  Agan  &  McLaughlin,  52 

"                   "            "              Gardner  &  Whitaker,  48  to    52 

Colton  ads.  Fowler, 175  to  184 

Cox  vs.  Gi-oshong,      -- 150  to  158 

Cutler  adi.  Gale, 92  to    99 

Daws  vs.  Glasgow,     --------  8  to    12 

Doty,  Jones  &.  Irwin  ads.  Strong, 3  to      7 

"        •'               "      vs.     "               158  to  174 

Fake  &  Cotton  ads.  Bird,      ....                         -  131  to  142 

Fowler  vs  Colton, 175  to  184 

Gale  M.  Cutler, -  92  to    99 

Gardner  &  Whitaker  vs.  Commissioners  of  Grant  county,  •  48  to    52 

Gear  vs.  Parish, -  99  to  111 

Gear  vs.  Bracken,      -        -        -        *        -        -        -        -  88  to    91 

Gilbert  ad*.  Clark  &  Jones,     -                                                     -  207  to  211 

Glasgow  ads.  Daws,  -..•.----  8  to    12 

Haney  vs.  Clark  &  Jones,      -        -                                            •  143  to  14!i 

Hrvtch  ads.  United  States, 22  to    32 

Hill  rs.  Bloomer,   -        -        -  123  to  127 

Hyde  vs.  Barker,        ------  148  10  150 


PACKS. 

Irwin,  Jones  &  Doty  ad*.  Strong,  •• 3  to      7 

<.<.      M.      »     -        -        -        -        -        -  158  to  174 

Jones  rs.  Webster, 199  to  195 

Jones  &  Clark  ads.  Haney, ]  42  to  145 

»        vi.   Gilbert, 207  to  211 

King:,  ex  parte 46  to    47 

Legate  fldr.  Welden, 127  to  131 

Low  ads.  Merrill, 59  to    64 

Low  vs.  Merrill, 185  to  189 

Lockwood  ads.  United  States,  215  to  220 

Lynn  ads.  Scow-Boat, 78  to    82 

Merrill  vs.  Low,  59  to    64 

Merrill  ads.  Low, 185  to  189 

Morrison  vs.  Renm, *        -  83  to    88 

Me  Kim  ads.  Pavkison, -        -  53  to    59 

McKisson,  in  bankruptcy, 

Me  Laughliii  &  Agan  vs.  Commissioners  of  Grant  county,      -  52 

Noycs  vs.  Hatch, 22  to    32 

Norton  ads.  Rookcr, 33  to    46 

Parkison  vs.  McKim,  53  to    59 

Fariiisonrj.  Bracken, -         -  .13  to    21 

Parish  ads.  Gear, 09  to  111 

Preston  ads.  Bracken,    - 220  to  22S 

Ream  ads.  Morrison,  83  to    88 

Rowen  rs.  Taylor,         -         -         -         -         -         -         -         -  74  to    77 

Rolette  vs  Rolette  &,  Brisbois,    ------  226  to  237 

Hooker  vs.  Norton,, 33  to    46 

Sal  tor  ads.  United  States, 119  to  123 

Stevens  vs.  Coon, 212  to  215 

Slaughter  vs.  Buvans, 195  to  207 

Stone  rs.  Tolle,      -        -        -        -        -        -        -        -        -  68  to    74 

Strong  rs.  Doty,  Jones  &  Irwin,          -----  3  to      7 

»      ads.    »           "•              " 158  to  174 

Scow-Boat  vs.  Lynn, -  78  to    82 

Taylor  ads.  Rowen, -        -  74  to    77 

Tolle  vs.  Stone,  G§  to    74 

United  States  r«.  Salter, -        -  119  to  123 

«         »        rs.  Hatch,    -------  22  to    32 

I-.T.  Lockwood, 215  to  220 

Webster  ads.  Jones, 190  to  195 

Wi-lden  rs.  Lrgate, 127  to  131 

Wright  ads.  Huslicc.  -        -        -        -        -        -        -         -  112  to  117 

Whiiakur  &-  Gardner  vs.  Commissioners  of  Grant  county,      -  48  to    52 


001  164  359     0 


